Published on China Development Brief (http://www.chinadevelopmentbrief.com)

Inventing new traditions

Created 2002-01-01 15:44

"As both Communist ideology and official virtue decline, the rule of law could fill the growing vacuum of belief, despite the absence of a strong rights based tradition in Chinese history."

So writes Stanley Lubman, in one of the more optimistic passages of his book, Bird in a Cage: Legal Reform in China After Mao, which draws on the author's 30 years experience of studying Chinese law and advising Western clients on business transactions and disputes in China.1

Are there grounds for optimism? Granted, the last 20 years have seen rapid and in many ways remarkable progress towards:

These are all essentially 'supply-side' phenomena: changes that the Chinese Communist Party and government have introduced, from whatever motive, as part of the economic reform process. Promising though these changes may seem, there remains something in the state's avowed commitment to "rule the country in accordance with the law" (yi fa zhi guo)2 that fails to resonate with (perhaps highly idealised) Western conceptions of a society based on 'the rule of law.'

Yi fa zhi guo is somehow reminiscent of those white, metal railings that now divide major roads in Chinese cities, corralling the citizenry into compliance with the traffic regulations (to the almost invariable disadvantage, incidentally but not entirely insignificantly, of the less well-off classes: cyclists and pedestrians). It connotes orderliness, tidiness, obedience and discipline: everyone following the rules that higher levels lay down and clearly promulgate. A less chaotic scenario, certainly, and very likely more fair, than everyone trying to follow the political directives of a ruling but often fragmented administrative elite. But yi fa zhi guo does not, particularly, connote individual rights; much less promise a legal system built on respect for them.

What, then, of the 'demand side'? In some ways, there appears to have been an even more impressive emergence of rights awareness across many constituencies, with individuals in the new corps of legal professionals often playing an energetic role in stimulating this. There is in fact a thriving rights discourse in China, which is also rapidly becoming a litigious society.

Consumer rights are an important case in point that bears directly on the business of building a market economy. Local and national consumer protection associations have become active in many urban areas. Consumer rights are a hot topic in the Chinese print and broadcast media, and there is little doubt that the many claims brought to the courts - from food poisoning cases to damages claims arising from cancelled air flights - have had a real impact in raising industry standards.

Rights are also a critical issue in property markets. Once people start paying significant sums to buy apartments, for example, they have a strong interest in protecting the amenity and value of their property and are less inclined to accept opaque planning processes that allow local governments to develop neighbouring lots without consultation or compensation. Property owners' and residents' associations are thus beginning to form, in response to the emergence of property markets. This phenomenon is, of course, largely restricted to the better-off - and there is a distinct danger that enhanced consumer rights will only be enjoyed by those who are affluent enough to buy significant property (and, if necessary, to hire a lawyer). How far will rights protections trickle down to the masses? For, in almost every sector of the law, there are very substantial problems in effective implementation of existing statutes.

Some legal activists are doing their best to aid the implementation process. For example, a group of young legal professionals who are alumni of Fudan Law School, and participated there in a project on employment rights funded by NOVIB (see Project Digest entry), have now started their careers in Shanghai's law firms; but they continue to provide pro bono legal advice to people in the city's less affluent communities. Among the most common cases they encounter are those that concern property development and compulsory relocation. People simply do not know what their rights are and, far from informing them, property developers frequently take advantage of their ignorance to serve illegally short notice and minimal compensation.

The related field of environmental rights - from ubiquitous issues of noise pollution to cases of poisoning - is also fast opening up to litigation and activism (see supporting article).

Women's rights too are the subject of a great deal of individual and organised activism both within and outside of the official Women's Federation. Numerous women's rights awareness and legal aid projects have received international funding support.3

Child rights remain a rather less developed field but here, too, some Chinese groups are beginning to emerge.4, Much the same can be said of the rights of people with disabilities, and the rights of migrant workers and their families (see article).

In short, Chinese activism in the fields of law and rights is beginning to make waves across a wide range of constituencies.

It is true that, as yet, very few activists put this range of concerns together or articulate them in terms of fundamental 'human rights.' This remains a rather sensitive, if not exactly taboo, topic, whose discussion is mainly limited to academic circles, including a dozen or so human rights research institutes that maintain libraries of international human rights literature - generally still locked behind glass panel doors.

But this is in itself a significant change from the time, not much more than a decade ago, when 'human rights' was officially castigated as a 'bourgeois concept'. More recently, the Communist Party and government has, rather, (and notwithstanding it's seat, since 1981, on the UN Commission for Human Rights), treated human rights as a largely 'Western' concept that is culturally inappropriate to China, where the 'right to development' is sovereign. (This argument is invariably followed by a list of China's achievements - in many ways impressive - in education, healthcare, poverty alleviation, etc.)

Might government and Party attitudes towards the idea of rights now be evolving further? In many fields of commerce and industry, after all, yesterday's bourgeois concept has become today's guiding precept.

Most Western observers remain sceptical (as, indeed, does Professor Lubman) but there are some outward signs of China thinking more seriously about human rights. In 2001, the Ministry of Education approved the study of international human rights in all law schools. This in part reflects the growing number of international covenants and conventions that China has now signed and international bodies on which it now sits. Scholars and officials need to be versed in the language of rights, if only to interact with the outside world. That Chinese officials are fast learning the rights discourse is attested by the increasingly sophisticated, retaliatory reports they publish critiquing human rights abuses in the United States.

International organisations that favour 'constructive engagement' with China - which, by definition, includes all official and non-government aid agencies that work here - are nonetheless inclined to count the signing of these conventions as progress. Some argue that reporting processes entailed by the conventions, along with bilateral dialogues on human rights, help to keep the attention of government bureaucracies focused on issues that count.

Sceptics retort that China is a past master at window-dressing, and that signing a document is a very different matter from abiding by it. As in the case of China's own laws, enforcement and implementation are all too often lacking, even if backed by real political will. The state is simply not capable of delivering even the limited rights it accords its citizens.

It is with the delivery of rights conferred by the state that most of China's rights activists concern themselves. 'Rights activists' is, of course, my construction: few would identify or recognise themselves as such. I am thinking partly of individuals and groups in China's emerging civil society, but also of many individuals within government and even Party institutions, who are themselves keen to promote the rights of particular constituencies. Yet, it is probably fair to say that, whatever the constituency, most rights activists limit themselves to spreading 'legal knowledge' and improving access to legal remedies that do exist - rather than, say, lobbying for the state to legally enshrine or extend rights that they regard as 'intrinsic' or 'inalienable'. Some exceptions do seem to be appearing, however: such as a network of women activists seeking, inter alia, legal reform in the area of domestic violence.

It is hard to say how much the more widespread, activist thrust of supporting state-backed rights owes to prudence (avoiding conflict with the state), how much to practicality (there is plenty of work to be done in implementing the existing body of law), and how much to the possibility that Chinese conceptions of rights may, after all, (as the Party leadership is also inclined to argue), simply be quite different from, and more limited than, Western conceptions.

Professor Lubman, who prefaces his book by declaring his colours as "a cautious pessimist about the future of legality in China,"5 would perhaps emphasise the third factor: China's lack of a strong "rights based tradition." Confucianism, he writes, "emphasised moral authority" in ways that naturally tended to promote "authoritarian rule and a hierarchical society."6 Thus, "the Chinese tradition did not address the problem of imperial or bureaucratic power in terms of individual rights."7 Whereas "Western thought makes the individual the bearer of rights and bases rights on the fundamental dignity and equality of every being," there is no such counterpart in Chinese thought. "In China, rights and duties are contextual, depending on the relationship of individuals to each other, and each conflict must be addressed in terms of the alternative consequences with a view to finding a basis for cooperation and harmony."8

This sketch is useful for its clear articulation of what is perhaps at present the most prevalent, Western perception of China - as a society that cannot escape its history, turning on the axis of personal relations (guanxi) and feeling (renqing) yet still with a strong, inner drive towards social harmony and consensus.9

Is this an accurate picture? This can be an uncomfortable question, inviting cultural, even epistemological, judgements that few can pronounce confidently. (Who can say what was in King John's head when he signed the Magna Carta, or in Jiang Zemin's when he signed up to WTO?) But they are not issues that foreign organisations working in China can easily escape, since they touch on the universality of rights and values that such organisations almost invariably presuppose, even as they hope to reconcile this with 'cultural sensitivity.'

However, Lubman's cautious pessimism is not rooted in cultural determinism so much as in a sober - and sobering - review of the state of law in China.

First there is the law-making process. True, the National People's Congress (NPC) is steadily working through a legislative agenda, and in some cases, such as the recent revisions to the Marriage Law, this has been accompanied by significant public consultation and debate. However, "Chinese legislation is intentionally drafted in 'broad, indeterminate language' that allows administrators to vary the specific meaning . . .with circumstances."10 One may argue that this arises from the need to accommodate and harmonise conflicting constituencies whose differences are not settled through the ballot box; but its result, Professor Lubman finds, is to increase the discretion of officials in interpreting the law.

Besides, although the NPC is nominally the supreme law-making body, the State Council, ministries and local governments still have huge discretion to issue administrative regulations. "No procedures govern the issue of these important rules, which may be issued or modified by any agency with exclusive jurisdiction over the subject matter."11

Courts, by contrast, even the Supreme People's Court, enjoy only limited discretion in interpreting the law. The collection and publication of judgements, to build up a body of case law, is only just beginning (although this is an area where Lubman appears to anticipate progress.)

On the other hand, courts are highly susceptible to being driven by government policy: as, for example, during the anti-crime 'Strike Hard' campaigns when, rather than exercising any independence, the courts promptly start to hand down tougher sentences.

But if the judiciary is hardly independent, nor is it exactly aloof: "One of the most striking defects of legal reform is the failure to raise the position of the judicial system from its current level."12 Rather than standing above and apart from administrative bodies, the Ministry of Justice and the courts beneath them merely comprise one pillar of the government administrative structure, and one of a range of bureaucracies to which people may turn in the event of a dispute. This (along with 'local protectionism') is one of the major stumbling blocks to asserting legality and enforcing court judgements.

This is compounded by the fact that courts often tend to mediate, rather than adjudicate. Lubman devotes a lot of space to discussing mediation in various forms, drawing on detailed research in several periods. He finds that judges will often strive for a result that satisfies all parties, rather than deciding who is right according to the law. This has the effect of "diluting legal rights by compromise."13 It also makes for a system in which individuals go to law in an opportunistic manner.

Such tendencies are exacerbated by the low degree of professionalisation of the Chinese judiciary. Many judges have minimal legal training, often being drawn from the ranks of retired army officers. Lawyers, too, are "Prepared to work more as 'state legal workers' than as autonomous lawyers [and are] caught between the need to define standards for a post-totalitarian society and the persistence of totalitarian institutions and ways of thought." Thus, in Lubman's view, "the bar must be invented as a profession without any guidance from Chinese tradition or China's recent history."14

A great deal of guidance has come instead from foreign funded legal and judicial education programmes (see Project Digest). Given Lubman's analysis, this is sensible and constructive; and, pragmatically, offering support for academic programmes is a relatively easy entry point for donors.

Yet, also given Lubman's analysis, abandoning tradition and recent history contradicts what development agencies tend in other contexts to consider good practice. It is almost paradigmatic among 'development professionals' that you don't throw out what is there: you seek, rather, to build on - 'develop' - it. This suggests a paradox in international efforts in this field - at least among those who are sensitive enough to recognise the failings of their own legal systems, and do not simply conceive of development 'cooperation' as a matter of importing superior models.

With the emergence of a recognisable legal profession and 'legal activists,' the issues become somewhat easier, and the choices wider, for international agencies: for there is something there that is identifiably Chinese (if rather less than traditional) on which to further build. This is now the case.

One area of common coincidence between donor and Chinese legal activist interest is the Administrative Litigation Law, which took effect in 1990, and the State Compensation Law, effective from 1995. These are widely glossed as entitling citizens to 'sue the government,' and the number of cases brought against government agencies has risen steeply - from 13,006 in 1990 to 90,557 in 1997, according to the figures Lubman uses.15 But Lubman is characteristically down-beat in his assessment of these. He notes that "Chinese legal reformers have been groping towards using legal institutions to control the exercise of power by government agencies"16 but finds that these laws are only "weak initial steps towards the control of administrative illegality."17 The Administrative Litigation Law, he explains, does not entitle citizens to challenge the many administrative rulings issued by government agencies; they may only challenge "concrete administrative acts" which are applications of a rule. In other words, government agencies still have unbridled discretion in making the rules, provided they don't themselves break them. Moreover, the Communist Party itself cannot be sued under the Law.

This is, therefore, a rather limited form of legal accountability of those in office; especially when compared to a system where a President can be impeached for lying about his sexual adventures. Indeed, the 1999 Senate hearings and Clinton trial, widely reported in the Chinese media and keenly discussed by Chinese citizens of all ranks, may have been America's best yet 'legal awareness' programme in China.

Nevertheless, there have been numerous, important cases where China's Administrative Litigation Law has been used successfully to challenge unjust administrative behaviour: for example, in illegal interference with village elections. Less remarked, however, are some of the potentially adverse consequences of this step forward in law-making. For example, it is likely that part of the reluctance of Henan's government to acknowledge the AIDS epidemic caused by blood plasma factories was fear of being sued by victims. This is not, of course, to argue against more government accountability, but to highlight the danger and muddle of half measures.

Finally, however it is in China's criminal justice system that the prospects for rule of law appear bleakest.

Lubman, who scrupulously avoids the term 'legal system' because he considers Chinese legal institutions too under-developed to add up to a 'system,' devotes relatively little space to criminal matters, since he finds that "the criminal process is still in the grips of Chinese Communist Party authoritarianism."18 The title of his book derives from the idea that "The economic bird has already escaped from its cage, the economic plan, but the legal bird remains in its own cage, although it is stirring and the dimension of the cage may be changing."19 In the case of criminal law, he might say, the bird is not just caged, but pinioned.

Notorious among the problems are the huge discretionary powers of the police. In addition to levying fines they may, without any recourse to the courts, send people for up to four years 're-education through labour' for a variety of public order or 'counter-revolutionary' misdemeanours. Given the extreme difficulty of accessing reliable statistical information on police detentions, it is virtually impossible to say how widely these powers are exercised.

In more serious cases, (as if four year's labour re-education were not serious enough), the 'procuratorate' (public prosecutor) plays a leading role not only in assembling evidence and prosecuting the case but, effectively, in determining guilt. For, as Lubman writes, "The function of the trial has been to demonstrate guilt, rather than to inquire into guilt or innocence"20 with results often decided in advance by Legal Affairs Committees of the Communist Party.

Revisions to the Criminal Procedure Law that took effect in 1997 allow lawyers to provide legal advice to suspects being detained or investigated, and to represent defendants in court. The same year, a Lawyers' Law came into force, defining lawyers as being "professionals who provide society with legal service," rather than the old designation of 'state legal worker'. These measures were widely hailed as breakthroughs in the development of China's legal system.

And so, indeed, they may have been. But, as in so many other cases of apparently progressive statutes, it is certain that implementation of these laws has been, at best, extremely uneven. Police and prosecutors have often proved unwilling to allow defence lawyers access to their clients, to collect evidence on their behalf, or to challenge prosecution evidence. In the worst cases - and there have been many - lawyers have been harassed, physically assaulted and sometimes themselves charged with criminal offences. According to a report by Human Rights in China, "Some lawyers have been convicted merely for acquiring a different story [from their clients] from that given to officials."21

As is clear from the Project Digest that follows, much of the international donor community is increasingly moving towards work in the area of criminal justice processes: shifting the training focus to police, prosecutors and the penal system; and the policy focus to issues such as police powers, evidentiary procedures, and the treatment of offenders. (A solid rump of work in international trade and commercial law is also likely to remain.)

This is to be welcomed as a natural and exciting progression. It also, however, begs a return to the perplexing issue of cultural conceptions of rights.

Among the numerous Chinese individuals and groups that it is possible to see as 'rights activists,' there is great sympathy for many constituencies who are, in some sense, innocent victims. But it is harder (as indeed is the case everywhere) to find individuals or groups who are interested in, or advocates of, the rights of those who are palpably guilty.

If we view this as a cultural issue - arguing that Chinese people are generally culturally disinclined to accept the inalienability of rights, and therefore prone to adopt an unforgiving attitude towards offenders - then pessimism is inevitable. For the humanity and decency of any criminal justice system is largely determined not by attitudes to those who abide by the rules, but by attitudes to those who do not.

It is also important to ask where change comes from. There is a clear limit to what can be imposed from outside. (As Professor Lubman himself stresses in a concluding chapter, where he quotes Montesquieu - "The political and civil laws of each nation must be proper for the people for whom they are made" - and warns American foreign policy makers against adopting too moralising a stance towards China.) Exposure to outside ideas is fine, but they cannot be force-fed; and, as the conventional development wisdom has it, for development processes to be enduring and meaningful they must be 'owned' by the 'beneficiaries'.

Yet it is probably safe to assume that China's senior leadership is not particularly interested in academic or moral arguments about rights. The post-Mao period has been characterised by pragmatism, and the leaders can be expected to approach every issue with the same question: Does this cat catch mice? (That is, will it contribute to stability, progress, etc?)

Change, therefore, will to a significant extent stem from the demand side - although not necessarily in a confrontational way. The emerging business, managerial and professional elites are highly likely to become increasingly vocal in demanding rights - or privileges - on their own behalf. Whether the society that results is one that enshrines the rule of law, and extends equal rights to all of China's citizens, may depend in no small part on the energy and willingness to be heard of those Chinese people, including many in the growing legal community, and many in government institutions, who do believe in rights and legality.

If we dismiss the argument that there is some major cultural barrier here, there is no reason why these concerns for rights and legality may not prove quite contagious - the prospect we find Lubman considering in the passage quoted at the beginning of this piece.

Moreover, it is arguable that concern for rights in one area, or for one constituency, may prove contagious in another sense. For example, the disability rights activist's understanding of social exclusion may well predispose her to think more widely about rights and protections for other groups; and it is out of this kind of concern that calls for a less punitive society may develop.

If, on the other hand, we do not dismiss the idea of a major cultural barrier to respect for rights in China, there is very little point in continuing the international effort to support rights and rule of law programmes. In a curious way, therefore, this binds all who seek 'constructive engagement' in this area to an imperative of hope.

Nick Young, 2003

1 op. cit. p. 306.

2 This phrase was first used by President Jiang Zemin in a speech in 1996.

3 See China Development Brief back issues - passim - and our Chinese NGOs: Civil Society in the Making.

4 As above - see past issues of CDB, and ‘’250 Chinese NGOS.

5 p. xvi

6 p. 15

7 p. 17

8 Tp. 19; the second citation references Geoffrey MacCormack’s 'The Spirit of Chinese Traditional Law' (University of Georgia Press, 1996).

9 Colin Mackerras gives an engaging account of shifting, and often contradictory, Western perceptions of China in his book 'Western Images of China' (OUP, Hong Kong, 1991.

10 p 147, citing Perry Keller 'Sources of Order in Chinese Law' American Journal of Comparative Law 42 (1944).

11 p. 143.

12 p. 3.

13 p. 278.

14 p. 158.

15 p. 208, Table 3 sourced from the Law Yearbook of China

16 p. 204.

17 p. 214.

18 p. 3.

19 p. 2.

20 p. 164.

21 Empty Promises: Human Rights Protection and China's Criminal Procedure Law in Practice. In China Rights Forum, Summer 2001 Human Rights in China.

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