Lead Article

The Growing Rights Consciousness in China


International documents such as the Universal Declaration of Human Rights present four general categories of human rights: economic, social, civil, political. As China opened its door to outside involvement and entered a new path of economic development, the great debate both inside and outside of China has been whether the acknowledgment of rights in one category, such as economic rights, would result in greater demand and resulting protection of rights in other categories, such as civil or political. The answer seems increasingly clear. There is a definite stirring in China and a visible progression from category to category.

New Thinking on Citizens and the State

Change has come on both sidesnew expectations by the Chinese people and new behavior on the part of the state. After decades when the "masses" were expected (or forced) to blindly follow the lead of the allegedly infallible Party leaders at every level, the idea has been spreading that people are not just subjects to be ruled. They are citizens with legitimate interests and rights that they have a right to define and that the state, as well as other citizens, must respect and protect. The Chinese government has begun to acknowledge the duties the state owes to the peoplenot just the centuries-old emphasis on the duties the people owe to the state.

There is no question that some of this new thinking is the result of international expectations, demands and modeling. Some of it comes from the resurgence of liberal democratic ideas from the experience of the Chinese Republic in the 1910s-40s. Given the overwhelming evidence of widespread official corruption and abuses of power, the government has been forced to admit the need for constraints on government and more effective responses to people's grievances. With growing diversity and conflicts of interest within a fast-changing society, the government has begun to seek new methods of preventing and resolving conflict.

Economic Rights

The imperative to grow the economy led the way. Beginning in the 1980s, China began enacting contract laws and regulations that would bring regularity to business ventures involving foreign investors. Thereafter, China enacted a multitude of other laws and regulations bringing a semblance of regularity to business ventures owned by Chinese themselves. The result was that Chinese business owners, whether in business by themselves or in joint ventures with foreign partners, now had economic rights which provided the legal framework for the growth of China's private sector.

Consumers were not far behind. For China's economy to sustain its growth into the new century, it became obvious that there would need to be a large increase of domestic consumptionthe Chinese people would need to buy a lot of products produced by Chinese businesses. The problem was, however, that Chinese products were defective, dangerous, inferior, fake, and the Chinese did not want to buy them. In 1994, China passed the Consumer Rights Law followed by the Product Liability Law and the Advertising Law. These put pressure on Chinese businesses to increase the quality of their goods and provided means of redress for consumers who got stuck with faulty productssuch as the right to go to court and obtain compensation from the company selling the product in the amount of double the retail cost of the product. With these laws, Chinese consumers obtained economic rights, and they have been exercising themsome obtaining impressive profits as they have learned to spot fake products, buy them, and then go to court to receive double their money back!

In October 1997, the official communiqu of the 15th Congress of the Chinese Communist Party stated the goal of building a "rule of law state"in the context of making China compliant with the World Trade Organization (WTO). In the same month, China signed the International Covenant on Economic, Social and Cultural Rights, and a year later signed the International Covenant on Civil and Political Rights. By signing the two covenants, China committed itself to a process of moving towards compliance in all these arenas. In 1999, the Constitution was amended to add the provision, "The People's Republic of China practices ruling the country in accordance with the law and building a socialist country of law" (Article 5). In 2001, as China joined the WTO, it also ratified the Covenant on Economic, Social and Cultural Rights. China has not yet ratified the Covenant on Civil and Political Rights, and their foot-dragging is an issue of top concern to the international community. New sets of regulations for various types of social organizations, including religious affairs, may be intended to bring China's regulatory framework more in line with these international norms prior to ratification.

All these steps forward have formally legitimized the public discussion of the rule of law, including personal legal protections, and an impressive effort in legal education has begun. The international community has taken this opportunity to help China set up legal aide clinics around the country where people can go to learn about their legal rights and hopefully find assistance in seeking redress.

Migrant workers have been a main focus of the legal aid clinics. Migrant workers are a major source of labor supply for China's growing industries, but though vital to China's development, they are often cheated by their employers and not paid full wages. In recent years, China has enacted labor laws and regulations requiring that migrant workers should be fairly compensated, and staff and volunteers at the legal aid clinics have informed the migrants about their rights and have tried to help them to seek redress, including bringing legal action against their employers. The results have been dismal, for the court system is currently too weak and too heavily controlled by local authorities who seek to protect the local industries. Yet through this, the workers have learned that they have rightseconomic rightsthat should be enforced.

Social and Environmental Rights

Women have been another major focus of the legal aid clinics, and women's rights have become a popular topic. In the Mao era, it was said that women would hold up half the skymeaning that they would no longer stay foot-bound at home, but they would enter the workplace, work equally hard as men and get equal pay. They were to be "liberated" as workers, not as women per se. But with the discarding of Communism, China has begun to shift back to its earlier ways, with unequal access for women to educational and economic opportunities and vulnerability to domestic abuse and commercial exploitation. A new emphasis on the rights of women and children has started to change that, at least on paper, with the Marriage Law of 1980 (amended in 2001) and the Law on the Protection of Women's Rights and Interests (1992) granting women a wide array of legal rights, including no-fault divorce mechanisms and provisions for civil compensation for fault, such as co-habitation with another, domestic violence or bigamy. A current major focus is the effort to stop the kidnapping and sex trafficking of women and children which is rampant both in the rural and urban areas of China.

The SARS crisis in 2003 has brought more attention to health issues in general. With the international spotlight highlighting the poor health care system, Chinese suffering from HIV/AIDSformerly treated as pariahsare getting more attention. In 2004, the Chinese government established its first legal research center on AIDS related issues, and top leaders were photographed shaking hands with patients. Yunnan province has pioneered a law forbidding discrimination against people infected with AIDS and their families. There is a new focus on the needs in the rural areas where the lack of health insurance coverage and a minimal public health infrastructure mean financial devastation and incapacitation or early death for those who become ill.

China's environmental protection movement is growing and with it popular demands for clean air and potable water. Chinese interested in protecting the environment were pioneers in setting up nonprofit organizations in China, and these environmental groups have likewise been pioneers in group advocacy.

Civil and Political Rights

With the rapid growth of the private sector, the issue of land and property ownership has come to the fore, indirectly challenging the residual socialist system whereby the state owns all land, leasing only use rights, a system that abets corrupt practices. Private business developers with political connections acquire rights to plots of land, evict the current homeowners or tenants, then demolish the old buildings and build new ones, driving the residents into court to try to seek fair compensation. Both businesses and individuals are demanding better property protections, and the rise of homeowner associations are a hot topic in China right now. Another example of group advocacy, middle class homeowners are joining together and challenging, through litigation, petitions or other means, aggressive developers and landlords. In March 2004, the National People's Congress added to China's Constitution the requirements that "citizens' lawfully acquired private property shall not be violated" (Article 12), and that "the state should give compensation" in cases where the state expropriates urban and rural land (Article 10).

The 2004 Congress also added a Constitutional amendment stating that the State "respects and protects human rights" (Article 33, Chapter Two), which may prove to be another step toward China's ratification of the International Covenant on Civil and Political Rights. The human rights amendment certainly is indirect evidence of the popular expectation that China's new generation of leaders should extend greater human rights protections. However, it will take some time for current laws to be reviewed and new laws written; bureaucrats, judges, police and security personnel retrained; and implementing regulations and judicial interpretations rendered in order to extend these very general concepts from the Constitution to the streets.

In recent years, the growing interest in economic and social rights has been tolerated, even encouraged, by the Party as a tool of governance in order to show the people that it is governing well and deserves to stay in power. There has been a sort of implicit understanding that people could pursue their economic and social interests, but with very limited civil rights, and political rights such as elections exercised only at the grassroots, nongovernmental level of society. But these new constitutional amendments and talk of a future "constitutional politics" portend an altered social contract reflected in the new "people first" political program. Developed since 2003, the strategy reflects a new recognition that state legitimacy rests not only on economic growth but also on social justice. The stated goal is to instill balance in China's development. Whereas rapid economic growth has been the sole criteria for the performance (and promotion) of local or central officials, other factors now will also weigh in, such as the distribution of the benefits of economic growth, environmental concerns and social development.

A major factor in the greater balance of power between state and society is the growing access to information after decades of state monopoly. The quest for economic development in China began the process of rights protection, and the fruits of economic development have fueled the processespecially the spread of new communication technologies such as radio (currently 1,000 stations), cable television (currently 100 million subscribers), and satellite television (with dishes popping up in the remotest of villages).

Internet access for more than 87 million Chinese is especially powerful in fueling the new public conversation about rights. Past protest movements in China consisted of sporadic local demonstrations led mainly by college students or by workers and were relatively easy for the government to control. But now, a broad spectrum of people can build virtual "alternative communities" around topics of interest and communicate over long periods of time, sharing experiences and learning from each other and from the outside world. Millions of Chinese are learning about the constitutional provisions and laws in their own country, as well as international thinking on human rights and the international norms for protecting them. The 310 million users of mobile phones and pagers now have instant communication, and these devices serve a key role in organizing mass protest gatherings springing up all over Chinaprotests demanding the payment of wages, fairness in taxation or protection from arbitrariness.

The Challengeto Find Win-Win Solutions

The demand for social justice and fairness in China is growing, with a shorter fuse for anger and violence. Complaints about the corruption of government officials and officials' abuse of power are rampant. The disparity in income levels between urban dwellers and people in rural areas is increasing the demands of rural dwellers to have the right to relocate to the cities and live and work there with full benefits of city dwellers. Demand for equality before the law, instead of the typical blatant unfair treatment between the rich and the poor, is a highly emotional issue as shown by two recent incidents.

In one case, the driver of a BMW reacted to a spat with a vendor cycling a load of green onions by crashing her car into the crowd, killing the cyclist's wife and injuring a dozen other people. Rumors spread that the BMW owner was the daughter-in-law of a provincial VIP. When she received a very lenient court sentence, locals rioted and a furor broke out nation-wide with bitter complaints that the murderer was getting off easy because the victim was poor and the perpetrator rich and powerful.

In a very similar case, a scuffle between shoppers and a porter on a busy street escalated into an outraged protest by 50,000 people, a shutdown of the city center and the burning of a government building, all because the shopper and wife beat the porter severely, claiming they were important officials who could easily pay $2500 to have him killed. Even larger riots have taken place among migrants and farmers.

The government appears to realize that the use of martial law and paramilitary troops to quell such incidents is only a temporary palliative. But whether it can come up with the kind of "win-win" solutions that WTO negotiations introduced into common parlance, solutions that accommodate all or most interests involved rather than continuing to play the zero sum game where the state suppresses society, is a major challenge to China's continuing peaceful progress.

Progress in actually seeing citizen rights play out in practice is slow, but visible nonetheless. Traditional ways of petitioning for redress, such as sending letters to the official "complaints offices" or traveling to the capital to present petitions to higher authorities, have never been effective. Currently only 0.2 percent of petitioners succeed in getting their complaints addressed. But these modern approaches are achieving results.

When a college graduate was wrongfully detained and placed in a custody and repatriation center where he was beaten to death, a very heated discussion spread through the Internet protesting the arbitrary custody and repatriation process wherein public security officials would detain migrants and then ship them back to their home areas. As a result of the large public outcry over this death, the State Council convened a cabinet meeting and rescinded the custody and repatriation regulations.

Similarly, the outcry over the death sentences given to Pastor Gong Shengliang and two other leaders of the South China Church resulted in a retrial and a life sentence for Pastor Gong and lesser sentences for the others. This reflects progress, of sorts. Meanwhile, debate has heated up over the improvements needed in the criminal procedure laws.

Religious believers in China have shared in the general growing awareness of rights, and as time goes on, more and more believers are demanding greater civil protections for religious belief and practice. They want to learn to defend themselves, not just "run away." Advocacy organizations overseas are receiving more frequent requests for international intervention and timely information, and with an unprecedented level of detail of informationeven including the phone number of local police offices.

The State Council regulations for religious activities due to go into effect in March 2005, replacing 1994 regulations on religious venues, are an example of the government's adaptation to the reality of large-scale religious practice in China. The new regulations are longer and more comprehensive than the 1994 regulations, yet they are a "snapshot" of current practice, since there is little in the new regulations that cannot be found in existing provincial regulations and implementing guidelines.

Key terms such as "religious belief," "normal religious activities," and the prohibition of "foreign domination" are still not defined, and there remains much room for arbitrariness as bureaucrats define and apply the regulations. The regulations retain the control systemthe special religious affairs agencies and monopoly organizations assigned to officially represent each religion.

Yet, the enactment of these regulations is evidence that the state is under internal and external pressure to regularize or normalize its relations with religious believers. There is a new requirement for the government to solicit the views of religious adherents, reflecting the new state-society paradigm that admits that problems are not always the fault of citizens but may be due to government abuses that require restraints and due punishment.

As with the other regulations affecting the social sector that have been recently enacted or are currently being revised, the drafters and implementers are well aware that they will be engaged in ongoing negotiations and hard bargaining with the various interests groups involved.

As religious believers take a more active role in engaging with society and government and negotiating mutual rights and obligations, the burden will be on them to do so constructively. There is a major opportunity for believers to articulate and model "responsible engagement," to take the lead in creating nonviolent approaches to conflicts of interest and protection of rights. Their overseas supporters need to step up to this challenge as well.

Carol Hamrin

Carol Lee Hamrin, Ph.D., serves as a research professor at George Mason University and a senior associate with the Global China Center. She served under five U.S. administrations as the senior China research specialist in the U.S. Department of State and in 2003 received the Center for Public Justice Leadership... View Full Bio