Chinese Law, International Law and Relations and Human Rights

So to condense the history of the above as it concerns modern Chinese history. Under the Qing dynasty the law was quite basic but serviceable and this law was basically continued by the first republican government and the Guomindang.

On arriving at power the CCP basically dismissed all of that law as a ‘tool of the ruling class’ and therefore as invalid and proposed to begin from scratch. Before the party could promulgate any law (and proposed laws weren’t prepared before they came to government) the early years of the PRC were effectively lawless as a result. The first two laws promulgated were the 1951 Marriage Law and the 1952 Land Reform Law and that was basically it. There was still no more general law beyond some nebulous concepts never clearly promulgated (except that what Mao said ultimately went). So obviously there was no possibility of a rule of law.

With the CR, even the law such as it had developed up until it began was swept aside by it.

Deng’s accession finally saw some systematic attention to this apparent deficiency. This was held to be (and was) vital to encouraging foreign relations and investment within China. A Criminal Code was enacted in 1980, various closed cases were re-opened, legal powers were formalised and centralised, more international involvement occurred and there was more local public education concerning the law. Finally in 1999 the ‘rule of law’ was formally explicitly enshrined in the Chinese law. Even then the reality was something different in practice.

The Chinese law is now in seven parts: the Constitution, fundamental laws, laws and administrative rules and regulations, other national regulations, provincial rules and regulations and local rules and regulations.

The Constitution is formally the product of the National Congress and the Congress also enacts and modifies fundamental laws. Regular laws may be enacted and amended by the Standing Committee of the Congress and administrative rules and regulations may be enacted and revised by the State Council. The other national regulations can be made by ministries or committees of the State Council, local rules and regulations are made by the National People’s Congress or its Provinces Standing Committee and provincial rules and regulations can be made by the People’s Governments of the Provinces themselves.

The law continues to have many grey areas (and guanxi relations (‘connections’ – if necessary fuelled by bribes of various kinds) continue to have the potential to override the law as ‘favours’ are done and repaid. In fact this kind of corruption is rampant especially at the local level). The definition of what used to be called the crime of counter revolution and now going by another name remains murky.

Harsh punishments are traditional in Chinese legal systems, Mao’s security system is not completely dismantled and Soviet models for the punishment of counter revolution in particular from the 1930s were also adopted and those factors all continue to have influence on the criminal law today. The Maoist prison system and the idea of ‘reform through labour’ also continue to influence the current penal set-up.

In the absence of effective legal remedies or opportunities to vote in an opposition in these circumstances, then, what remains is protest, boycotts and media publicity (both local and foreign). Courts are not independent either and effective lawyers have also been in short supply and so these other forms of shining a harsh light on corruption or unfairness are really the only true protections for the rule of law.

So China naturally in these circumstances has a rather bad human rights record and one of the major aspects of this is the large number of executions. The 1999 Observer Human Rights Record Index gave China’s as the 9^th worst record mainly due to the volume of executions. This is despite China having signed the 1986 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In 1990 the Deputy Chief Prosecutor admitted to 2,900 cases of perversion of justice or confession obtained through torture.

The massacre of 1989 is called an ‘incident’. China has signed further human rights agreements and also given further undertakings.

The earliest international human rights agreement China signed or at least voted for was a UN one on non-discrimination among other things. Although it was voted for by the Guomindang government in 1948 it has never been repudiated by the PRC government in any formal way. The declaration states that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (UN Universal Declaration of Human Rights)

The CCP still discusses human rights but now with the overlay of the Asian Values debate. The stress is on the collective right to speedy economic development over ‘individualistic’ freedoms and rights. The CCP also continues to remind others of the state of China’s and other states’ own rights of national sovereignty as it opposes the development of new international ‘responsibility to protect’ doctrines. This was first asserted internationally as an issue of international mutual respect and non-interference by Zhou at the Bandung Conference of Non Aligned Nations of 1955. If pressed by a government like Australia’s concerning its internal human rights record, however, China will happily discuss Australia’s record with respect to Australian aborigines. The 1991 White Paper on Human Rights states China’s current position.

China’s government is sensitive to how others view its record and to international pressure. Western political leaders for their part raise human rights issues to avoid being seen as “soft on China” and the recent US “Axis of Evil” view of the world has challenged China. Consequently the CCP prefers dealing with foreign companies to concerned foreign governments but China’s economy is expanding rapidly and consequently resource hungry so dealing with international concerns may be regarded as vital to China’s interests. It is now also able to use both its economic power and beneficence to get what it wants internationally more than ever. In return for assistance to some poor African countries, for example, China has been able to secure valuable contracts for many of the resources of those countries. Consequently, there are now no shortages of suitors attracted by the novel power of China especially among the poorest nations.

Since 9/11 China has been willing to discuss the issue of international terrorism internationally (partly as it is dealing with long-standing mainly Muslim Uighur and sometimes violent separatism movements mainly in Xinjiang some of which have international elements). The CCP government has agreed to support the US against terrorism hoping this support will be returned by the US overlooking China’s suppression of its Muslim Uighur minority. Internally, the CCP also likens various movements to international terrorist movements for propaganda purposes.

China’s main foreign policy aims may be seen broadly as preservation of national integrity, promotion of national economic development and promotion of security interests (especially in the Asia-Pacific Region). Among China’s current international concerns are Taiwan and the South China Sea and its territories. China claims Taiwan, various South China Sea island groups and much of the Sea itself as territory of China and much of the claim is in dispute internationally. China demands that countries that have diplomatic relations with it recognise its claims and especially its ‘One China’ policy that affects Taiwan in particular and regard its actions in the region as a matter internal to China (with mixed success). Oil found in the South China Sea region complicates this situation (as it is prone to do to situations). Water is becoming valuable in China and an international issue as evidenced by China’s recent willingness to trade land in its West (with, I think, Kazakhstan) for certain local water rights (in a little publicised move).

Asia (China’s neighbourhood) has been relatively peaceful for some time now and China recognises this relative stability is in its current interest, however, and generally strives to promote this. Nevertheless nationalism tends to provoke incidents with Japan (and to an extent with Taiwan). The worst recent incident involved the Senkaku Islands in 1996 and resulted from popular pressure on the Chinese government. The dispute continues to occasionally flare as both Taiwan and Japan also lay some claim to the islands. Again, oil reserves are possibly involved beneath the surface of this tripartite dispute.

The so-called ‘overseas Chinese’ have also played a major role in China’s international legal relations as China develops. Up to two million Taiwanese now reside on the mainland and China manages its relations with the Chinese-language press throughout the world. Some of the ‘overseas Chinese’ have also acted as agents for China in its ‘aid-for-resources’ business in Africa and there are also many Chinese in Australia, of course.

Australians dealing with China should beware! China is no longer in the mood to be patronised by the West and, as our second most important trading partner already and soon to be relatively more important, Australians must understand China. The China that can say No is a worthwhile text that reveals how far China’s self esteem has recently come. China now has wealth and self confidence. Australia moreover is capable of finding grounds for cooperating with China in multilateral forums.

Jocelyn Chey of the University of Sydney has spoken of how easily Chinese can be accidentally insulted by cultural insensitivity and how she has personally noticed examples of this since the late 1970s in organising film maker and student exchanges when memories of the CR were fresh in many minds.

A loss to Hong Kong in soccer was also apparently capable of provoking serious popular outrage in China in that era. China was surprisingly dangerous for foreigners for a few days after the loss including Professor Chey.

Professor Chey also remembers being told during wool trade discussions she had attended in China only six days after the event that evidence of the Tiananmen massacre that she mentioned having seen live on Hong Kong TV was a fabrication.

Her suggestion for dealing with the Chinese in commerce is to first remember the Chinese saying “the commercial field is a battle field”. She says Chinese people will respect you if they know which side you’re on and you remain loyal to that side and once again if you “don’t patronise them”.

Politics and Political Theory in the PRC and Deng

Firstly let’s have some (neo) liberal theory ala Fukuyama. Free markets lead to a free people/middle class who then seek political liberalisation and control of the state by means of democratic reform. Then the reforms they want happen as a weakened state succumbs to the magic force of individual freedom, Deng allowed free markets, therefore democracy would eventually be forced upon him QED history is now ended. Where could this theory (admittedly very simplistically stated) go wrong? There might be obstacles to the political reform that the theory may be too incomplete to envisage and indeed there have been.

The first might be the lack of information flow that authoritarian regimes are able to bring into non-existence. The second might be cultural constraints: people might for example value peaceful illiberalism over revolutionary liberalism that might involve much more violence.

This would all be debated albeit illiberally within Deng’s illiberal reformist state.

The first debates as I noted initially helped Deng because the main initial target of democracy wall activists was the Gang of Four. I also noted that Deng quickly closed down the wall when he began to perceive the liberal thought it contained being widely disseminated didn’t accord with his own interests. Wei’s fifth modernisation made him the first dissident of the Deng era and it was also the idea that finally made the Tiananmen Square massacre of 1989 and not democracy inevitable, not yet at any rate.

It wasn’t as simple as Deng opposing all reformist talk all the time however. The 1980s can be viewed as the decade of a repeating liberal/illiberal loop with liberal thinking alternately encouraged, ignored and then discouraged by Deng. It must have suited Deng to be able to present himself as a kind of middle of the road compromise candidate as he consolidated his strength offering at different times something to everyone from the hard core authoritarian leftists to the most radical of the democracy reformers.

Wei could accuse Deng of becoming another Mao and Deng couldn’t easily disprove this by permitting Wei to say that without penalty (as it was he got 13 years’ gaol for ‘counter-revolutionary’ activities) but he could permit some criticism.

Was the picture of the lone man in front of four tanks in Tiananmen the best symbol of Deng’s final political legacy? Or will political liberalism finally ‘catch up’ as the above neoliberal theory supposes and be his final legacy? Did Deng weaken his state with his reformism supported by democracy activists in a kind of ‘zero sum game’ that will ultimately give this picture the power to turn humans into superhumans capable of overthrowing it? Will the internet and/or events in the Arab World and Myanmar also influence this picture?

Let’s back a little back. The wall activists were saying down with Mao and the CR and the Gang of Four but what was Wei saying in particular that Deng finally couldn’t have?

Firstly in Democracy: the Fifth Modernisation Wei was getting ahead of the game too far. Deng had proposed four modernisations and Wei had to add a fifth.

Secondly he claimed in a ‘big character poster’ and another article that Deng would have to become like Mao who he had opposed. He was arguing that the system (that therefore needed to change) caused this (making him a prominent dissident throughout the Deng years – at one point in the 1980s he emerged from gaol only to be re-gaoled soon afterwards).

What did Deng have to say about political freedoms? Firstly Deng had no special interest in or desire for democracy to come about especially quickly (if at all). His first duty as he saw it was still to Marxism in some form. Deng’s response when critical posters began to re-emerge in 1980 was to amend the constitution to ban them. Ironically, such posters were actually first specifically made constitutionally protected during the supposedly more repressive CR years.

Deng propounded his Four Cardinal Principles in March 1979 as the limits of debate. Debaters had to be following the socialist road for the PRC, accept the maintenance of the dictatorship of the proletariat for some time, acknowledge the rightful leadership of the Communist Party leading in that and adhere to Marxism-Leninism Mao Zedong Thought (as expressed before 1957) in any theory of government in the current socialist phase that always precedes Communism in Marxist theory.

He also produced four legal reforms in June 1979 at the 2^nd Session of the 5^th National Party Congress (NPC) defining ‘crimes’ for the first time in the history of the PRC in a criminal code and limiting the definition of ‘counter revolutionary’ crime, enshrining for the first time the notion that ‘all citizens are equal before the law’ (including non-party members) in a new procedural law, regulating and regularising joint ventures (especially with foreigners) and providing for an electoral law at the lower two levels of the People’s Congress structure.

In the following year at the 3^rd Session of the 5^th NPC (as is the practice) matters of party discipline were up for discussion (the criminal law did not apply to party members so a member had to be expelled before it could be applied to her or him). Deng called for reform there to reduce over-concentrations of power with individuals by means of holding multiple positions especially in both the party and the government, further separate party and government functions, provide for a retirement age for senior functionaries and succession and further guard against abuses of power by the further strengthening of internal party discipline by means of appropriate sanctions. These reforms were especially overdue given the continuation of criminal impunity of party members. The intra party codes would now be strengthened to mirror the criminal codes (as now formally promulgated) somewhat closely.

Party members continued to be permitted to be government officials, just with less dual posts. With regard to the retirements of people of his generation (he was in his mid 70s (having been born in 1904)) he set an example by retiring as vice-chairman of the party (though he intended to continue wielding all the power behind the scenes – he took the title ‘paramount leader’).
The two official leaders came from the next generation. They were Hu Yaobang (born in 1915 – CCP General Secretary from 1981 to 1987) and Zhao Ziyang (born in 1919 – Premier from 1983 to 1987 and CCP General Secretary from Hu’s fall in 1987 to 1989). Zhao had been somewhat instrumental in the successful agricultural reforms in Anhui leading to him being brought to Beijing.

Next week: causes and effects of Tiananmen.

From Mao to Deng

Just a little more today on what changed and what didn’t:

The first thing to note was a sense of grief and a hole to fill was left for so many Chinese by the death of Mao after he had effectively (and otherwise, it must be said) ruled China for a generation. Deng’s form of hole-filling by radical reform proved to be another kind of revolution for the many who had never known any system other than Maoism.

China still was (as it still is today) both relatively poor and relatively isolated in world terms but progress had been made (and would continue to be under Deng’s reforms). Mao’s and Deng’s goals weren’t really so different after all. China would be strong.

But many of the Chinese needed a rest as much as many others remained restless. Continuous revolution was not fun for everyone. Virtually every year since 1949 it must have seemed a violent major purge or at least a personal denunciation was liable to be just around the corner.

The CR was one of many of these types of occasions as my earlier posts record. Deng himself was a prime example having, himself, been purged and rehabilitated more than once. The violence of millions of Red Guards had barely subsided when Mao died, the Gang of Four instated their own purges, Hua had them arrested in turn in his best Mao imitation and the retributive purges continued even as Deng assumed control.

But Deng seemed inclined to lower the boom on terrorist government (at least on Mao’s scale) and there must have been many sighs of relief on all sides. Even the Red Guards themselves who ultimately felt betrayed by Mao (who had finally banished them to the countryside, remember) now breathed more freely.

Deng was a CCP man, though. So what did this mean? There would always be enemies of Communism that needed to be rooted out, that’s what.

Ironically some of the most prominent of these enemies of Communism turned out to be disillusioned Red Guards. One of the first acts of rebellion they became involved in if not against Communism then at least against the current system (even before Deng had had the chance to spell out how he intended to reform it) was the Democracy Wall movement that began in Beijing in 1978 and remained centred there. Many of those now involved in the movement were of course first politicised when they had become Red Guards during the CR.

Refreshingly, Deng announced his approval of the movement (Mao had done something similar, though, with his ‘Hundred Flowers’ comments – could Deng be trusted any more than Mao?) And in this case this was just before he assumed power. As had occurred with Mao, expressions of approval of an ideological movement spurred it on – they chose to again trust their at least hoped-for leadership.

Deng then brought in his reforms and the people waited to see how it would turn out. Would he ultimately welcome the democracy first sought by the May Fourth Movement in 1919? Maybe not.

Better international relations were now on the agenda. The US and China were ready for rapprochement. By 1 January 1979 they had established full diplomatic relations and later that month Deng visited President Carter becoming the first Chinese leader ever to visit the US. Deng was impressed by the technology and material conditions he witnessed on this visit. He, in turn, impressed everybody he met in the US with his vision for China and its relations with the West.

Like Mao, Deng was prepared to turn on dissenters and soon the democracy wall demonstrators that had supported his own rise to power were going too far for him. Deng had wanted four modernisations and Wei Jingsheng, for example, suggested democracy as a fifth.

Deng as readily referred to people like Wei as counter revolutionary as Mao had called Deng that. He began to suppress the movement in Mao style (if a little less violently) and the wall was soon shut down. Notably most of the wall activity had actually been conducted with due regard to the Four Cardinal Principles Deng delineated that I will refer to in a later post.
The reality was that Deng copied Mao’s legal methods in that laws that no one could possibly follow were always kept in reserve to justify any repression as and when it was desired by the leader.

Deng’s next concern in terms of dissent would be potentially brought about by the local devastating drought in Anhui province (also in 1978). Chinese agriculture was still close to a subsistence proposition in a typical year and employing most Chinese so drought was a particular concern in China. The large communes didn’t help matters. In response, local authorities, inspired by the peasants themselves, tried the system that would work and later go national. The productivity in Anhui boomed in response to this new incentivisation. Famine was averted but rolling out the scheme nationally still turned out to be a test of Deng’s power base.

Deng’s ‘capitalist roader’ tag still had the power to tie his hands regardless of how successful (and in fact saving) capitalism could be shown to be. He was finally able to squeeze the reform through, however. It also proved itself almost immediately nationwide in terms of productivity. Along with the local produce and other markets, small factories producing consumer items for market also began to spontaneously sprout up in rural areas.

The two major figures standing with Deng then were Hu Yaobang and Zhao Ziyang and they both also favoured the market.

Foreign capitalists found they were now welcomed, too (initially principally in the SEZs). The foreigners in the zones were popular with locals because they had deeper pockets and this attracted Chinese from all over China hoping for a share of their apparent largesse. Chinese wages and standards of living were higher there but the increases eventually flowed throughout much of the Chinese economy especially in the south of the country (because most of the initial zones were concentrated there. The coastal city special areas were more evenly spread between north and south).

The youth of these zones soon began to live a noticeably more decadent and capitalist lifestyle and to lose some respect for socialism. Prostitution and other supposed signs of vice soon began to flourish there.

Deng’s response (under some pressure from the left to prove his credentials) was to begin a campaign against ‘moral pollution’. After decades of Maoism this comparatively mild effort was treated as a bit of a joke, though. In one oft repeated story a particularly zealous official involving himself in the campaign criticised somebody who possessed a book containing a picture of a western woman with a low cut dress. The woman in question turned out to be Marx’s wife. Meanwhile, investors apparently weren’t getting the joke and Deng was forced to end the scary campaign before it had really begun to assuage their fears. Nevertheless thousands of smugglers had been arrested as part of the campaign.

Deng successfully negotiated the 1997 handover of Hong Kong following the expiration of Britain’s lease with the Thatcher government despite Thatcher’s apparent misgivings, another coup for south China. He used a combination of a few threats and agreement to the concept of ‘one state two systems’ to get that happening, the latter leading to more local name-calling to the effect that he was excessively ‘rightist’. The name-callers probably never had to deal with the “Iron Lady” themselves and in fact Deng once remarked that in these discussions he was “the Iron Man meeting the Iron Lady”.

Deng’s other two notable reforms were to allow the practice of religions more freely again and to reduce the length of the working week. All in all, the economic and social reforms I’ve outlined in these last couple of posts saw Deng riding a wave of popularity by the time of the PRC’s 35^th anniversary celebrations in 1984. In the next few posts I’ll focus a little more on political, party and legal reforms in the Deng era especially as it continued from here (and prospects for more).

Problematic Legacies from Mao (and Deng’s Solutions)

Despite the successes I noted in the last post, Mao’s era left a shortage of funds for capital investment, low morale and productivity in the workforce, the beginning of a stagnation period in standards of living, a growing rural/urban divide in living conditions and antique and inefficient (on the verge of obsolescent) industrial plant and technologies. Deng would have to deal with these issues.

His approach was firstly to state his approach and hope it caught on but obviously there was more to it than that. The basic approach was (as usual in the PRC) related by various slogans. It was to recognise that there were ‘objective economic laws’ and scientific methods, that ‘practice is the sole criterion for truth’ and that the CCP and PRC should ‘seek truth from facts’. That was stage one at least and might not appear very radical but it really was something new after Mao’s regularly magical and occasionally probably paranoid thinking.

Deng planned to fix the living standard stagnation and to some extent morale and productivity by allowing some funds normally slated for investment to be the foundation of a new consumer economy. This was near the beginning of the ‘greed is good’ decade in the US and it would be in China, too. Deng felt he could not only satisfy that greed but turn it to the advantage of the economy ala Gekko. The shortage of capital would be addressed in part by permitting unemployment for the first time as necessary economically to free resources for consumption.

How could Deng justify what was an obvious trashing of much Mao Zedong Thought (MZDT), the official policy of the PRC? As MZDT was itself a modification of Marxism/Leninism, Deng saw no reason why he couldn’t further modify MZDT and that was essentially his public message. Within a few years as we know (in 1981) the correction would become quite explicit for all time in black and white in the Mao is 70% good 30% bad pronouncement.

The main error of Mao’s that Deng wanted to correct from a theoretical point of view (or at least this is what Deng wanted his people to believe) what his thinking that Communism was always just around the corner. Deng now said this misread the great Marx and that is certainly a fair claim. Mao was really having regard more to Lenin’s and Trotsky’s ideas when he thought of how China needed to and would be able to behave. Deng’s stated view was that there was an early ‘primary stage of socialism’ to go through that might take anything from fifty to a hundred years. This was what he said objectivity taught (and that was what now mattered, of course).

Economic development was a key focus in this primary stage that could be understood within Marx’s philosophy – a focus that Marx noted was well handled by capitalism (which socialism was to follow, rather than seek to overtake so precipitately). The corollary was that the policies required by Deng looked less like Maoism than capitalism and were arguably perhaps more orthodoxly Marxist (if not especially Leninist). Furthermore, egalitarianism could clearly not be complete at this stage, then, because the greed for extra material incentives was what greased the wheels of the capitalist system. The ideas that “some much get rich[er than others] first” and that in fact “to get rich is glorious” were new tenets for this period of PRC history (that we’re still in today, more than thirty years later, despite the passing of Deng himself into history).

The role of the centre was now to be as a (more remote) chairman of the board rather than a Maoist micro-manager, which was actually more about Mao’s own personal style in many ways. The gradual incremental process of development was described as being like “groping for stones” when attempting to cross a river. Ideas for change would generally be tested with care first on a small scale before gradually going into large scale operation only as they proved their merit. The centre had a role here. There was no question of pretending something had worked at a local level that hadn’t and rushing headlong into a foolhardy national implementation. It could easily be discarded as an idea and moved on from at the local trial level.

All governments manage the economy to some extent at a macro level (by macroeconomic policy) and, as I’ve noted, the new policy was to encourage and permit more consumption. Many also take some charge of microeconomic reforms and the PRC government was well placed to direct resources away from heavy industry investment (still oversubscribed despite Mao’s best efforts) into investment in the lighter consumables industry (and consumable agricultural output was an aim of investment, too). Here Deng was also attempting to address the city/country divide. Salaries were increased and decision making was briskly decentralised to prepare for better development outcomes (local managers were given discretion over the payment of material incentives (the preferred form usually turned out to be payment of bonuses)).

The outcome of this reform was that it became usual for up to 50% of a typical Chinese worker’s pay-packet to be comprised of efficiency bonuses (efficiency would usually be determined by means of some kind of point system). There was also to be a transition to markets determining outcomes in both the cities and in rural areas and so also many price control regulations were removed. And the final reform in the overall economy (that I’ll consider a little further in a later post) was a further opening up of China to trade and foreign investment. China especially wanted to export more and receive foreign investment capital and advanced technology.