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”.

Deng the Economist and ‘Capitalist Roader’

So now it’s time to move on from Mao and all his successes and failures and consider what did Deng do? As I mentioned earlier I also want to explore the surprisingly positive economic legacy of Mao. I'll also do that here.

Incidentally Liao Yiwu is in Surry Hills Monday night (21 November 2011) as a belated part of this year's Sydney Writers' Festival (he was refused permission by the Chinese authorities that are Deng's successors to visit the US in April and attend the festival in May - he is now in exile since having apparently been forced to exit China irregularly). See http://www.swf.org.au/201110251054/home-page/liao-yiwu.html (the festival page for the event - it's apparently at the Belvoir Theatre) for more details. He seems to think he may be able to end his exile with the end of Hu Jintao's term in office next year (per an article in the New Yorker). Kommt zeit kommt rat!

After Mao’s death in 1976 a struggle for power ensued that Deng finally won in 1978. In so doing he and his supporters defeated the Gang of Four and their less numerous and less ardent supporters. Besides the Gang of Four, a possible compromise candidate, Hua Guofeng, also looked like a player for a time. He was also apparently Mao’s final personal choice for a successor. His policies were derided by all sides however as ‘whateverism’ policies as he had the tendency to model himself upon Mao and explicitly prefer doing ‘whatever Mao did’.

Deng’s victory became clear publicly at the 3^rd Plenum of the 11^th Central Committee in December 1978 when he also propounded his programme. By this time Hua had had the Gang of Four arrested and become himself a mere figurehead.

There would be a shift in CCP focus from class struggle to economic construction via the ‘four modernisations’. This was a Zhou term. The point of the change was to dial the politics back in favour of pragmatism. In defending his black-hatted (from Mao’s perspective) and ‘capitalist road’ approach to economic development Deng was wont to say something like “it doesn’t matter whether the cat is black or white so long as it catches mice”. Political ‘colour’ was less important in the moment than what got the economic job done.

The more radical of Mao’s ideas were explicitly rejected and his class labels were all repudiated (as long as one didn’t oppose Deng or Dengism – that could still lead to a lifelong label that one still wouldn’t like and that could also stick to one's family). The vast majority of formerly specifically denounced bureaucrats and others were given their old jobs back. The term used for this was ‘rehabilitation’. And finally in 1981 we had the 70% good 30% bad statement in the CCP’s Resolution on Party History about which I have written in earlier posts. This was an assessment of Mao as both a man and a leader.

Just let’s have a brief look at Mao’s economic record, though, before we move on, as that was now to be Deng’s explicit interest. In fact the economic record may be surprisingly good to some (and his social record, too, was at least generally fair). China is regarded in the fields of Economic History and Developmental Economics as one of the 'major economy late modernisers' or 'late industrialisers' (along with Germany, Japan and the USSR) so it is fairest to compare China’s fundamentals with those of those three economies in their respective growth spurt periods (usually a few decades was the crucial period – early developers took longer as they had to invent more things from scratch).

Germany’s growth rate per decade in its spurt period (1880 to 1914) was 33%, Japan’s (from 1874 to 1929) was 43%, the USSR’s (from 1928 to 1958) was 54% and China’s (from 1952 to 1972) was 64%. So it’s not a bad record over a sustained spurt period even if we allow that China may have come from a slightly lower base. The down side is that China seems to have run out of spurt a little sooner (after two decades compared to Japan’s at the most impressive five and a half decades).

From 1952 to 1977 industrial output increased 11.3% per annum, agricultural output increased 2.3% per annum and population increased by 2.0% per annum. Here are some more impressive and more specific output and demography figures for China for around that period:

	1952	1976
Steel output	1.3 million tons	23 million tons
Coal mined	66 million tons	448 million tons
Crude oil produced	0 million tons	28 million tons
Fertilizer produced	0.2 million tons	28 million tons
Cement produced	3 million tons	49 million tons
Electricity produced	7 billion kilowatt hours	133 billion kilowatt hours
Size of Employed Industrial Workforce	3 million industrial workers	50 million industrial workers
Size of Employed Scientific Workforce	50,000 scientists (1949)	5,000,000 scientists

There were also fair records in educational development that made the above possible but especially of girls and young women and in both rural and urban settings that if anything Deng’s accession interrupted (albeit briefly). Sixty percent of fifteen year old girls in China in 1946 had received no formal education according to statistics produced by Wenfang Tang and William L. Parish in Chinese Urban Life under Reform: the Changing Social Contract (Cambridge University Press: 2000) but half had received a least some Junior Secondary education by the year of Mao’s death according to Tang and Parish’s statistics. That’s the change over thirty years. The small percentage who had received advanced education also nearly tripled (from around 2.5% to around 7.5%). I don’t have the text to hand but that information may be specific to rural females (despite a title that might suggest an urban focus) but, wherever it relates to, the trend is the notable thing rather than absolutes and locations. It’s possibly even more impressive if they are rural figures, though. So Mao was (perhaps more than adequately) setting Deng up for some success.

What did the CR era do that had a lasting impact and wasn’t all negative?

This is a fun week because I get to praise Mao (at least to some extent) not bury him. It's also a quite conflicted week for me for the same reason. First to today's post on the CR's redeeming qualities:

Mao, of course, had correctly noted a kind of creeping elitism that the CR may have well put into its place for some years (he first suggested that the problem was within the party itself in his “twenty-three articles” discussion of January 1965). This would have been a deliberate aim of the CR and a worthy achievement of it. Grassroots activism to counter it was enhanced.

Both the Mao cult and the idea of revolutionary successors in the social life also outlived Mao (and weren’t unalloyed negatives for the future).

Another feature of the CR era is so-called “proletarian culture” and specifically the proliferation of ‘revolutionary operas', folk songs and films. Mao had made clear his interest in reforming the outputs of Chinese cultural forms since at least his time in Yan’an. There he berated certain writers and other ‘cultural workers' when they didn’t conform to this vision of the revolutionary forms.

There was a long history of debating the correct way to ‘do’ revolutionary culture and 'correct content' and as I’ve noted the Anti-Rightist campaign following the short Hundred Flowers epoch was essentially directed against cultural workers. Writers were a constant target and one non-conformist poet in the early 1950s was famously targeted. The playwright who sought to defend Marshall Peng in a veiled critique of Mao in a new play has been considered by some to be something of a catalyst for Mao’s conception of the CR (formally the Great Proletarian CR) because of the very importance for Mao of this debate. The debate continued into the CR.

Mao did recognise that the forms should be popular, though, and this was the positive aspect of this cultural development. It wasn’t elitist. It certainly was driven politically and propagandistically, however. To achieve popularity, Mao sought to use popular traditional forms of culture suitably modified. There were new lyrics and themes designed to inspire devotion to the cause. The Ministry of Culture was set up to control all media, cinema, writings, music and artworks.

The model operas (they were occasionally quite balletic as well and some were also filmed) were retellings of the heroic deeds of past Chinese heroes in the revolutionary era especially. They were thus models of socialist culture for CR revolutionaries and were themselves seen as a growing up of Chinese culture into its correct socialist form. They tended to be of two fairly distinct types: either they told of a distant revolutionary past depicting the travails and struggles of workers and peasants or they told of the recent or present heroic deeds of the revolution. They modelled both how to behave as a good revolutionary citizen and how to spot a bad one.

Seven or eight were produced beginning in 1964 or 1965 and early on a number were presented in a special festival in Shanghai. Later on Jiang Qing was at the centre of encouraging their production. These operas are again in vogue in today’s nostalgic mood in China after having fallen from grace at the end of the CR era. They were well made by talented artists.

Red Brigade of Women is a noted opera set in Hainan in the 1930s and so is of the first form. It depicts a brigade of women being moulded by the CCP. Nixon was apparently shown this opera on his 1972 visit to China. Its ballet form was quite western but this was acceptable to the Chinese as it was associated firstly with Russia, at least a recent revolutionary ally. The form was also adapted with movements from the popular and traditional Chinese opera form. The women and their leaders go on to fight the reactionary GMD and landlords.

The Port is of the form depicting more recent (PRC era) events. Workers at the port are preparing to send a gift of food to their poor brothers in Africa while a manager at the port conspires to divert the shipment to the West so that he can sell it and line his own pockets. Spies and other enemies of the people are also depicted. A struggle naturally ensues. This is more a traditional style Chinese opera than the more balletic Red Brigade of Women.

Cadres actually travelled out into the field, collected folk songs and changed their words following the above pattern. Even the new national anthem was an adapted folk tune.

The revolutionary films especially were used in the training of the revolutionary successors being from a relatively modern form and so presumably most appealing to the young of all of the art forms.

A major work in the film genre was a song and dance spectacular filmed in the Great Hall of the People called the East is Red (Dong Fang Hong). It was first intended to be shown in 1959 to celebrate the 10^th anniversary of the formation of the PRC. It is a revolutionary history lesson in interpretive song and dance. Zhou was involved in its writing and it commences with a lavish song and dance routine in praise of Mao. The imagery evokes a multitude of sunflowers (the dancers) bending in the direction of their sun (Mao). What then follows is the history lesson taking the audience from the times of oppressed dock workers under Japanese and European occupations with the evil flags of the Japanese, Americans and English draped on the ships in the harbour through all the revolutionary events but especially through the Long March. We see scenes of Jing gang Shan, a mountain in the Jiangxi Soviet, and Long March scenes including scenes of the famous Battle of the Bridge. Interestingly, it has a Western orchestral score throughout. It is the purest melodrama.

Another major film of the era was called Lei Feng and told the story of the eponymous ‘hero’ that I’ve referred to in an earlier post. The movie shows that (among other wonderful things about him) even on his one day off (on Sunday) Lei helped mothers with their babies and workmen to build houses (and all anonymously). And even late at night he was always apparently to be found reading the words of Chairman Mao.

Those works give a flavour of both variety of the proletarian culture of the era and also some of the sense of sameness.