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The Religious Consultation on Population, Reproductive Health & Ethics


Human Rights: A Valid Chinese Concept?

By Julia Ching

University of Toronto
This paper was presented by Dr. Ching on a panel convened by the Religious Consultation on Population, Reproductive Health and Ethics at the NGO Forum of the United Nation's World Summit on Social Development, March, 1995.


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Table of Contents

Section One: Introduction
Section Two: The Meaning of Human Rights
Section Three: Human Rights: A Western Concept
Section Four: Human Rights and Chinese Culture
Human Rights and the Chinese Constitution
Section Six: Human Rights: The Chinese Record
Section Seven: Conclusion

Introduction (1)

It has been a long-cherished ideal of mankind to enjoy human rights in the full sense of the term. Since this great term--human rights-- was coined centuries ago, people of all nations have achieved great results in their unremitting struggle for human rights. However, on a global scale, modern society has fallen far short of the lofty goal of securing the full range of human rights for people the world over. And this is why numerous people with lofty ideals are still working determinedly for this cause. (2)

This statement sounds like a press release from the United Nations. It is actually the first paragraph from the preface to the [White Paper on Human Rights] issued by the government of the People's Republic of China in November, 1991.

Having said so, I might perhaps conclude right here with a resounding Yes to the question I have posed myself: "Is human rights a valid Chinese concept?" However, there are certain difficulties that come to mind at once, such as an internationally known, abysmally bad record on human rights in China (3). So I shall have to persevere a little longer to examine the problem in greater depth. I intend to offer a working definition of the term, human rights, to describe its essential contents briefly, before going on to examine its visibility for the Chinese situation, given a very unique cultural heritage and a Communist system of government.

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The Meaning of Human Rights

It is both easy, and difficult, to speak on human rights. It is easy because so many people seem to know what the term means. In our Western society, this is taken for granted. Yet it is difficult because no one definition can adequately explain the term.

There is a problem, for example, with the word "rights": not just in Chinese translation, but also in Western languages. At first sight, the term represents legally protected entitlements of individuals in society. And many have the impression that certain rights taken for granted are a sacred legacy from the past.

Actually, history reveals that before the seventeenth century, European and even British society placed as much emphasis on duties as on rights. One owes duties to one's lord, to the king, the Church, and to God. Rights belong rather to the powers that be. Feudal lords claimed les droits du seigneur kings claimed divine rights; the Church disputed these with even higher rights received from the supreme Being; and God, of course, has always been sovereign in his unlimited rights and domains. Such as the state of affairs not only in Western Europe but also in much of the world were theism reigned.

Historically, the dialectic was between the rights of the rulers and the duties of the subjects. Beginning with the seventeenth century, the subjects or former subjects of the lords, kings, Church and God began to assert their own rights--those claims that they demand the law to protect. Rights therefore, rely on law for enforcement: even such a fundamental right as that to life and security. Without the proper laws of the land, especially if chaos is the order of day, this right would remain only a fiction even in our own Western society.

We turn now to the term "human" since by human rights, we are referring to the "rights of human beings". I shall not dwell on the definition of a human being, since even this could be controversial. Depending on whether we opt for the biological (for example, the full genetic code), the philosophical (rationally, free will, self-consciousness), or some other model, there will always be problems regarding the boundary lines. For example, people question whether fetuses, or the comatose, should be considered human. I am already sidestepping the gender issue, by avoiding the use of the term, the "rights of man," but we can see how the extent of human rights depends on where the boundary lines are drawn (4).

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Human Rights: A Western Concept

I would like to describe human rights as a creature of recent birth with a fairly long lineage. Its mother is liberal, moral and political Who_are_we--the French Enlightenment and liberal English thinking, among other things. Its father is international law, while its midwife is revolution: first the Revolution of American Independence and then the French Republican Revolution of the late eighteenth century. Such papers as the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen may be considered its birth certificate. The ensuing Bills of Rights that became incorporated in many national constitutions worldwide, and especially the United Nations Universal Declaration of Human Rights (1948), might be described as its introduction to high society. But its ancestry includes further back, Stoic concepts of natural law and the traditions of Roman civil law on the continent and of the Anglo-Saxon common law to the extent that these lent protection to the rights of citizens and of individuals. (5)

In 1945, the United Nations Charter enjoins

" universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. (6)"

So we may suppose that certain articles from the United Nations Universal Declaration on Human Rights (1948), that has been widely publicized, commands a general consensus regarding the definition of these rights. I quote briefly here:

  • Article 1. All human beings are born free and equal in dignity and rights....
  • Article 3. Everyone has the right to life, liberty and the security of person.
  • Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
  • Article 7. All are equal before the law and are entitled without any discrimination to equal
    protection of the law....
  • Article 9. No one shall be subjected to arbitrary arrest, detention or exile.
  • Article 18. Everyone has the right to freedom of thought, conscience and religion....
  • Article 19. Everyone has the right to freedom of opinion and expression....
  • Article 20. (1) Everyone has the right to freedom of peaceful assembly and association.... (7)

These examples constitute a statement of principles, which are generally what people refer to when speaking of "human rights" in the international arena. However, although enshrined by the authority of the founding nations of the United Nations Organization, the Declaration itself does not bear the signatures of all those nations participating in the international organization. The government of the Republic of China, which moved its seat to Taiwan, participated in the drafting of the Declaration, but the government of the People's Republic of China which has succeeded to its seat, has never signed this Declaration. The Declaration itself serves principally as a Manifesto, in its won words, "a common standard of achievement for all peoples and all nations. (8)"

The Declaration, including a Preamble and some 30 Articles, was drafted very much under the influence of the Western nations, in particular the United States of America, at the end of the Second World War. The social and economic rights were included very much at the insistence of the Communist nations, which, however, did not become signatories. There has been, understandably, discussion and argument as to whether the statement of right represents a Western conceptual construct with limited applicability, or whether it offers a solid core of principles that deserve the respect of all peoples and governments. I shall be discussing some of these problems later, but offer those parts of the Declaration that I have quoted as examples of what is considered to be the contents of human rights. And these rights as "rights" are also considered--in the West--as universal and inalienable, to be enjoyed equally by all who are human, without which they cannot live a life deemed to be fully "human".

And here arises our problem. Is human right mainly a Western ideological export (to accompany its trade delegations) bolstered by subtle claims of Western political and cultural superiority? What validity can it claim to have in non-Western cultures such as in the Chinese?

These questions may be answered in two successive steps, which are not mutually exclusive: 1) seeking theoretical and historical justification within Chinese culture for a certain capacity to accept and adapt this concept, and 2) arguing from the language of today's Chinese Constitution itself, to see whether it is in harmony with, or in opposition to, the spirit of human rights. In doing such, I shall compare Chinese ideas in some cases to Western concepts.

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Human Rights and Chinese Culture

I shall begin by reporting some interpretations.

(a) The Debates

When we come to the topic of human rights and Chinese culture, we find at least two opposing interpretations. They concur that human rights is not historically a Chinese concept, but a Western import. The first interpretation regards attempts to introduce human rights into China as an unnecessary cultural intrusion into a culture and a society quite self-sufficient in its won pursuit of humane values and social harmony(9). The second essentially maintains that Chinese civilization has nurtured for millennia a brutal political culture that has only commanded passive obedience without permitting the development of any real idea of civil rights and liberties. In this case, however, the conclusion may either be that the contemporary situation in China represents already a vast improvement on the traditional past(10), or that these rights and liberties need to be properly developed and protected(11).

But: Granted the historically alien character of the concept of human rights, could we still argue the validity of extending it to the Chinese situation, on the basis that there is enough in the culture that could accept it?

(b) The Problems of Translation

A preliminary problem regards translation. These Chinese language does not have an exact equivalent for the word "rights". This term is usually rendered as "power" (quan), a reminder that "might makes right"--in the East and the West. On the other hand, the term "human" in "human rights" is sometimes translated as "people" (ming) or "citizens" (gongming), rather than as individuals. This happens especially in the language of Chinese constitutions and politics.

Literally, "human rights" is translated as renquan, "human power," one reason why the struggle for human rights has been understood by the Communist state as a fight for political power, and therefore, a threat to the establishment. A less ambiguous term is the Chinese translation for "democracy" that is minzhu (literally, the people as masters).

(c) The Chinese Humanist Legacy: Positive Teachings

In the post-Christian West, liberal humanism, beginning as a revolt against theism, and eventually influencing many believers in God, has offered a climate of openness for the assertion and discussion of universal moral values. In China, where a Western ideology, Marxist-Leninism, nominally reigns as absolute dogma, the population remembers a native humanist tradition going back more than two millennia to Confucius and even earlier.

We mentioned how the United States Declaration places primary importance on every individual's human dignity, and the sanctity of human life. In China, tradition claims that an ancient sage king refrained from a war of conquest with the words: "I would not shed the blood of one innocent human being even if that could gain me the world." Whether that was actually said is not so important, because the belief in the truth of the statement shows how important one individual human life was regarded through the ages.

In the West, people are accustomed to an image of Confucius as a wise man or a sage, teaching about how to live a virtuous life, much as did Socrates in ancient Greece. Socrates is regarded as a humanist; in fact, he was condemned by the state for misleading youth, turning them away from the code of their fathers. Confucius had his own struggles with the state, but died a natural death. In a world where military valor was highly esteemed, he instructed the youths instead in the ideal of a humane person, who valued moral relationships above all else. Confucius seldom discussed religious matters and has always been known as a humanist. Indeed, he transformed the particular virtue of ren, the kindness that characterized the man of high birth, into the universal virtue of humaneness that makes every person who practices it, a "gentleman" or junzi (literally, the prince's scion). Understandably, he distanced himself from the religion of antiquity, with its emphasis on divination and sacrifice--including human sacrifice, which he is reported to have condemned in strong terms. And Confucius' teaching of ren was extended to the political order, where it is defined as benevolent or humane government, as government of moral suasion, in which the leader gives the example of personal integrity and selfless devotion to the people.

The Confucian teaching of moral relationships, defined as those between ruler and subject, parent and child, husband and wife, elder and younger siblings, and friends, appears to uphold a vertical hierarchy in society while urging for responsibility and reciprocity. In many ways it did have this effect socially. Besides, the Chinese view of the human being tends to see the person in the context of a social network rather than as an individual. But the fourth- to third-century Mencius (372-289 B.C.) further developed Confucius' thought to articulate his conviction that every human being could become a sage. Implicit in this doctrine of the universal accessibility of sagehood, is a teaching of human equality, of what we may call, "moral equal opportunity." And we should remember that becoming a sage was tantamount to gaining the rights to kingship, since the most revered sages were the sage-kings of ages past(12).

The United Nations Universal Declaration on Human Rights says that human rights should be protected by the rule of law "[if] man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.(13)" In the case of China, there has been an age-old doctrine regarding the legitimation of power: that the ruler rules only by a divine mandate, called the Mandate of Heaven (tianming), which he could lose by misgovernment. Indeed, the Chinese work for revolution is literally, to "remove the Mandate" (geming).

Mencius, the best-known disciple of the Confucian school, even formulated a doctrine justifying tyrannicide, declaring that killing a "tyrant" is not killing a "king"(14). In an age when the altars of the earth and grain signify political authority, Mencius words were: "The people come first; the altars of the earth and grain come afterwards; the ruler comes last (7B:14)."

And so Confucian China shares with Christian Europe the idea of vicarious authority in kingship. But the doctrine of tyrannicide, which developed so early in China, emerged only much later in Europe. The late sixteenth-century treatises by an anonymous Huguenot author and by the Spanish Jesuit Luis Mariana were either publicly burnt or condemned, although they were to wield enormous influence(15). In China too, some of Mencius' teachings were considered inflammatory. This was the opinion of the fourteenth-century founder of the ming dynasty, who sought to delete from the Book of Mencius those passages that approved of tyrannicide(16).

Implicit in the political teachings cited above is that government rests on popular consent. More explicitly, the fourth century B.C. Confucian thinker Xunzi (Hsun-tzu) speaks of human beings coming together in society to achieve the strength and harmony without which they cannot conquer other beings, presumably, the birds and beasts(17). Before him, the fifth-century B.C. thinker, Mozi (Mo-tzu) already discussed the origin of social authority through a form of consent on the part of human beings who gather together to prevent disorder and injury by the election of wise leaders(18).

A fourth-century B.C. Legalist thinker, Han Feizi (Han Fei Tzu), a staunch defender of the ruler's rights, and an opponent to Confucian political Who_are_we, also says that the people are the ones who make a ruler:

In the most ancient times, when men were few and creatures numerous, human beings could not overcome the birds, beasts, insects, and reptiles. Then a sage appeared who fashioned nests of wood to protect men from harm. The people were deigned and made him ruler of the world calling him the Nest Builder(19). The seventeenth-century English philosopher Thomas Hobbes' Leviathan came much later (1651), in which he describes everyone as at war against everyone else in a state of nature. Hobbes discerned in this the basis of natural right in the human desire to live. Aided by reason, which he calls the law of nature, human beings would agree to relinquish much of their sovereign right to all things in a contractual relationship to a state, while reserving certain individual liberties having regard to self-preservation. Thomas Hobbes cites inter-human conflict as what human beings wanted to avoid in joining together in political society, and so did Mozi. But the other ancient Chinese thinkers go back to a more remote past, and conceive society to have begun in the human struggle with the non- human species. Implicitly, they are saying that the human family is one, and that human beings in a state of nature had rights and liberties that they freely surrendered for the good of the whole.

But if incipient ideas of human equality and popular sovereignty arose very early in Chinese thought, they did not lead to a political structure which protects human rights. The twentieth century has not seen the proper development of the institutions of participatory democracy which could assure human rights in China. Unfortunately, the danger remains that only another violent revolution could "rectify" the situation, and so far, revolutions have only replaced one set of ruling elite with another set.

In modern times the Chinese language also had to coin a word for "freedom" (ziyou, literally, self-determination). The closest classical term was ziran (literally, the natural), connecting more a fascist sense of harmony with nature than of Promethean self-assertion. Actually, the belief in human perfectibility, a cornerstone of Confucian Who_are_we, implied a belief in personal freedom. But this was more an interior, spiritual freedom to improve one's own moral character. The concept of freedom as a right, such as the right to freedom of thought and religion, to freedom of speech and assembly, was never clearly articulated until modern times, and then under Western influence.

Leading twentieth-century Chinese philosophers living outside China, where they breathe fresher air, have agreed that traditional Chinese culture contain "seeds" for concepts like science and democracy which have come more directly from the West. I am referring to such persons, like Carsun Chang, Mou Tsung-san, Tang Chn-i and Hsu Fu-kuan. Mou is still alive and very much respected(20).

Besides, Chinese observers of the West have also pointed out what the West could learn from the East. For example, there is excessive individualism working against so-called family values, a litigious spirit promoting conflict rather than harmony, and especially in the United States, an unacceptably high crime rate. There is also an increasing gap between the rich and the poor in capitalist societies, a monopoly of political election campaigns by those who could afford them, and the social deprivation of various minorities, including native American and Canadians. The Chinese Communist treatment of minorities, including Tibetans and Central Asians, is abominable. But even within China, while coping with repression, the population has been able to maintain a high degree of self-discipline. And the peaceful, disciplined, and thriving societies in East Asian countries outside of China with very dense populations demonstrate the people's sense of social harmony and family virtues. East ASiasn value what they call humaneness, or human warmth, which they find lacking in a system where human relationships have lost a personal touch. The West may yet have something to learn from the East here.

(d) Legal and Political Heritage, Negative Developments

The concept of law (fa) is also understood differently in the Chinese cultural context. The Confucian society was governed by li (literally, ritual, or ritual law), a term rooted in ancient religion, and presuming a distinction between nobility and commoners. Li may be described as customary, uncodified law, internalized by individuals, and governing gentlemen in their personal and social lives, in their behavior toward the spirits as well as the rest of the world. For that reason, li has the extended meaning of "correct behavior." It was based on justice, righteousness (yi), even humanness (ren). A classical education was an education in the rites, one that prepared the young nobles for life. fa, on the other hand, were ritual customs, selected and codified, which became a penal code, to be applied to commoners who had not the privilege of a ritual education.

The evolution of law in China may be described as the devolution of ritual (li) into law (fa) and of law into punishment (xing)(21). For this reason, law is regarded as having played a mainly penal role in Chinese society, protecting the rights of the rulers and enjoining passive obedience on the part of the subjects. Until today, the Chinese fear the law, because law has been an arbitrary instrument in the hand of the rulers.

Besides, traditional Chinese political thought has always assumed that human beings would be governed by monarchies. Confucianism obviously preferred benevolent monarchs and had no use for tyrants, but Confucian ministers did not always have the power to make sure that tyrants were kept from the throne. There were changes in the dynastic cycle, but the individual who acquired power were often the wrong kind, even if they did so in the name of the Mandate of Heaven. Unfortunately, in the light of historical events, this doctrine became understood as a kind of historical determinism governing the rise and fall of political dynasties.

There had been critics of absolute power among traditional Chinese intellectuals. For example, student protests were known nearly two thousand years ago, in the second century A.D., when the Han-dynasty capital saw a collection of 30,000 students at the imperial college, quite a few of whom held mass protests and political demonstrations. (Eventually, the state learnt from such experiences to give more importance to civil service examinations (for which China became famous) than to imperial colleges with large enrollments.) But the year 1126 once more saw student petitioners at the Song-dynasty palace gates in Hangzhou, protesting the removal from office of a much loved figure at a time when the country was threatened by outside invaders. A riot ensued when their sympathizers conflicted with soldiers, but the students achieved their political shims and were pardoned for making trouble. In modern times, student demonstrations on May 4, 1919, in support of "Mr. Science" and "Mr. Democracy" are especially remembered for having brought about national consciousness of needs and problems(22). On April 18, 1989, student representatives recalled history when some of them made "petitions" to the government on their knees at the entrance to the Great of Hall of the People in Beijing, on behalf of the thousands gathered during an all-day demonstration. After sixteen hours, the written petition was accepted, although nothing came of that(23).

Unlike Thomas Hobbes who believes that the people have no right to rebellion, another seventeenth-century English philosopher John Locke asserts in his Second Treatise of Government (1690), that the subjects, like their rulers, have important and even absolute rights, such as to life, liberty and property(24). In the late eighteenth century, the idea of natural rights eventually helped to overthrow two governments: George III's over the American colonies, and Louis XVI's in France, and became articulated into the statements proclaimed after these events(25).

The situation in pre-modern China (long after the time of Mencuis) was quite different. Increasingly, critiques of power wars made obliquely or in secret. A seventeenth-century Chinese thinker, Huang Zongxi, well known as a philosopher and intellectual historian, wrote a critique of despotism, mingyi daifanglu ("Plan for a Prince") which was not published until the early twentieth century. In it, he condemned the rulers for regarding their domains as their private property, and their subjects as their servants and slaves. He proposes that law (fa) be established for the interest of all rather than of the few, and that government be by laws rather than men. And he denounces those laws that enslave the people as "unlawful laws"(26). There is no reason to think that he had been influenced by the West. An important thinker and an influential teacher, Huang was a philosopher of the school of the sixteenth-century thinker Wang Yang-ming, who was partly influenced by Buddhism, and placed emphasis on the human mind-and-heart (xin) as the seat of wisdom and goodness, the source, we may say, of human dignity and of potential sageliness. Yang-ming's Who_are_we has also been the principal inspiration behind contemporary Confucian thought, stimulated as well by ideas from the West.

Unfortunately for China, Huang Zongxi's ideas did not get the same reception as John Locke's. With time, political power became more despotic in pre-modern and modern China, as the voices of criticism and protest were increasingly stifled. This process continued under Communist rule, as a Western imported ideology -- Marxist - Leninism -- was used as a theory and practice of power at a scale hitherto unimagined, and by men often less competent and more ruthless than some earlier emperors. True, certain trappings of power surrounding court ritual, as well as institutional abuses inherited by the absolute monarchy, were discontinued. But decisions affecting the lives of the entire population continued to be made by the few, or rather, by the "one man" be this Mao Zedong or Deng Xisoping, and without the benefit of traditional institutional balances as that of the imperial censorate, which was empowered criticism the exercise of power in the days of the monarchy. As the media are strictly controlled by the government, journalists have complained in May, 1989, that here had been more liberties before the Communists took power, such as under the warlords. And it was for lack of a vehicle to communicate their complaints that the people made use of big wall posters, such as in the late seventies, but these have since been outlawed.

Why was it that the Chinese had very early articulated ideas about human dignity and equality, but were unable to establish a political system that would protect this dignity and equality? This question has been troubling the minds of many contemporary Chinese intellectuals. The disintegration of feudalism in Western Europe was eventually followed by the empowerment of the propertied classes, whose assertions of their own rights eventually contributed to the extension of like rights to the whole population. In China, however, a system of feudalism started very early and was disintegrating by the time of Confucius and Mencius. It came to a formal and when the country was unified by the sword under the First Emperor, a hated despot who burnt books and buried scholars (c. 213 B.C.)

In contrast with Western Europe power in China became increasingly centralized in the hands of the monarch, rather than shared. A titled aristocracy was strong during the classical period, at the time of Confucius and Mencius, when the country was divided in feudal states. Its powers and privileges were then dissolved by a suspicious absolute monarchy, never to be successfully restored. A government controlled education system and a civil service examination promoted the principle of merit, while monopolizing the supply of bureaucrats, who where mere advisors and administrators, and, as the propertied class, never threatened rebellion. Eventually, even the position of the prime minister was abolished in the fourteenth century, so that power-sharing at the top occurred more often with eunuchs than with competent ministers. There was never an independent judiciary, although a Censorate served to channel policy criticisms.

The Confucian doctrine of benevolent government from above was not sufficient to guarantee the rights of the subjects below, and the population was instructed more to serve social harmony than to assert their own rights. Power was more commonly wrested from one party by another, through wars and rebellions, started in turn by the military elite or by the socially deprived who had nothing to lose. It was not properly distributed and structurally balanced.

Of course, democratic Western Europe is in many was an exception on the geopolitical land mass of Eurasia, and in the world as a whole, in achieving democratic institutions after a mere period of nearly two thousand years. Even there, it did not happen overnight. And the process evolved from the struggle for the rights of the nobles and propertied, to that for the rights of all. If China did not develop like institutions earlier, could she at least, accept the importance of human rights as a concept and develop the necessary safeguards?

I think that philosophers like Mencius and Huang Zongxi demonstrate that the Chinese intellectual tradition was well prepared for accepting Western ideas regarding the legal protection of human rights. Witness the efforts of intellectuals in the late nineteenth and early twentieth century who sought to secure a constitutional form of government, first under a monarchy, and then under a republic. Their efforts failed not so much because they were introducing ideas considered alien, but rather because the country was not permitted by the outside powers, both the West and Japan, to evolve peacefully.

I cite as support for my assertion the final failure of the monarchical idea, after the fall of the Manchu dynasty (1911), and in spite of efforts to restore it or to start a new one. It would seem that the population was no longer wedded to the legitimacy of a dynastic idea -- after all those millennia of history. Even Mao Zedong was not succeeded by his own issue, and while Chiang Kai-shek in Taiwan was eventually followed in office by Chiang Ching-kuo, the latter would initiate the democratization process that makes the one-party government no longer a certainty in Taiwan.

True, the idea of despotism was never uprooted, and it continued under other banners of Republic or People's Republic. But I feel assured by the recent disclosure of popular dissent in China during the last decade that despotism, under whatever form, whether in Taiwan before the eighties, or in China as the dictatorship of the alleged proletariat, is not loved. Human rights, on the other hand, have been very much in the consciousness of a people deprived, at times, even dehumanized.

"We want to be human beings" was the rallying cry of the Tian'anmen demonstrations of 1989. It was also testimony to the deeply felt sentiments of the people at large, accustomed to persecution and long suffering. There have been many smaller demonstrations in Beijing: demonstrations, or petitions, of individuals or groups, such as poor peasants, who went to the capital in search of justice and protection, as did their ancestors before them, in the days of the monarchy. That they did so was proof that they believed in certain entitlements--even if they received no Western education.

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Human Rights and the Chinese Constitution

Our discussion of the relevance of human rights in the light of Chinese culture might appear superfluous granted the fact that the government of the People's Republic has recently declared itself in favor of human rights, explicitly in the White Paper of 1991, and certainly implicitly in it Constitutions, especially that of 1982.

In the West, human rights reflects the growth of individualism in the theory and practice of society. Socialists have criticized its development, and asked explicitly for economic and social rights. But presumably, Communists China followed the precedent of the Soviet Union as well as of the Republic of 1991 in eventually giving itself a constitution. China has promulgated several constitutions, three times (1954, 1975, 1978) before 1982. This reflects an effort to find a suitable instrument for legitimation, since each constitution lost credibility through the nonobservance of the party in power. The impression is that a government should exist for the protection of the people's rights, so the 1982 constitution gives due regard to the "citizens' freedom of speech, of the press, of assembly, of association" and even describes such freedom as "inviolable.(27)" In fact, we can compare, article by article, the 1982 Constitution with those of the United Nations Universal Declaration and find real parallels.

Art. 35. Citizens of the People's Republic of China have the freedom of speech, of the press, of assembly, of association, of procession (yuxing) and of demonstration (shiwei).

Art. 37. The freedom of the citizens of the People's Republic of China is inviolable... Unlawful deprivation or restriction of citizens' freedom of person by detention or other means is prohibited....

The problem is the supremacy of the Communist party, enshrined in the constitution as the "dictatorship of the proletariat" and resulting in a lack of harmony between the constitution and the laws that circumscribe it. My brother Frank, who served in China as a correspondent for the Wall Street Journal (1979-83), told me the story of how he was once briefly detained by Chinese security. While walking by their office on a city street, he chanced to see a notice of certain decrees and decided to note them down. This apparently attracted sufficient attention for him to be summoned inside for questioning. He was asked what he was doing, and why. He replied that he was taking notes of the published rules and regulations, which he found interesting because they limited the constitutional rights of freedom of speech, of assembly, of association, of demonstrations. When confronted with the fact of these laws and decrees, which could be found unconstitutional in a Western society, his interrogators were not amused. They even questioned his motives in noting things down, as though this itself might be an act of sabotage. If he was permitted to leave after an hour or so, it was because he was an American citizen, not a Chinese.

In this situation, it is amusing that a non-Chinese citizen could better exercise his rights than a Chinese, as the constitution specifically speaks of the freedom of the citizens. This is also indicative of the government's attitude that civil liberties are political privileges bestowed by the state rather than natural rights, and this, in spite of the assertion in the constitution that all power comes from the people.

The country's leaders who proclaimed the 1982 Constitution, had themselves suffered from random repression and lawlessness during the Cultural Revolution (1966-76). The public had therefore expected that they would set up a judicial system that keeps a proper distance from the political and the administrative. But the threat of loss of power in June 1989 -- accompanied perhaps by a genuine fear of another chaotic "cultural revolution"-- led to the enactment of martial law without due observance of the constitutional safeguards. And the military crackdown effectively trampled on the constitution itself. For all this, the system has once more lost its credibility.

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Human Rights: The Chinese Record

The world at large did not know, and did not appear to wish to know, the abominable record of human rights in the People's Republic of China -- at least before the Tian'anmen Incident of 1989. Perhaps, once more, it no longer wishes to know now.

Mao Zedong has now a known record. We know that four million people, considered enemies of the People's Republic, but often on flimsy evidence and after kangaroo trials, were executed from 1948 to 1955 -- during the benevolent years of the Communist rule. Possibly thirty million people died of man-made famine in the three years following Mao's Great Leap Forward policy (1958) -- almost five percent of the entire population, an unprecedented event for the world and for China. And then, millions more perished during the Cultural Revolution (1964-74) again on account of his misguided policies which permitted innumerable abused throughout the system. Den Xiaoping also has a record, starting with the arrest of dissidents like Wei Jingsheng, who was sentenced to fifteen years in 1979 for having dared to ask for democracy, and continuing with the Tian'anmen crackdown on June 4, 1989.

Recently, the West obtained documented information about just how dehumanized people were during the Cultural Revolution. I am referring to incidents of deliberate cannibalism, committed for ideological reasons, and I shall quote here from Nicolas D. Kristof and Sheryl WuDunn, China Wakes: The Struggle for the Soul of a Rising Power:

The documents suggest that at least 137 people, and probably hundreds more, were eaten in the towns and villages of Guangxi Province in the late 1960s. In most cases, many people shared a corpse, so the cannibals may have numbered in the thousands. While this apparently was one of the largest episodes of cannibalism anywhere in the last century or more, it is different from most other cases in that those who ate the flesh were not motivated by hunger or by psychopathic illness.

Instead, the compulsion was ideological: The cannibalism took place in public, often organized by Communist Party officials, and people indulged communally to prove their revolutionary order...(28)

I am not offering the gruesome details here, but I wish to say that such gross abuses against human rights occurred because the political climate had encouraged other abuses. Does this, however, belie the possibility that human rights can be a valid Chinese concept?

My answer is that abuses, even gross abuses, could take place anywhere. Living in the twentieth century, we know that they occurred in such countries as Nazi Germany, Stalinist Russia, Communist China and Cambodia. We have no assurance that they will not occur again anywhere--even in Western Europe and North America. But human rights has become an accepted concept in today's Germany and Japan, and even in for the former Soviet Union--despite the many problems there.

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I started out by quoting from the Chinese White Paper of 1991, and giving it some approval. The government has accepted to speak of human rights, whereas before, even the Constitutions only spoke of "people's rights" or "citizens' rights." Officially, it is now at least permitted in China to discuss the topic of human rights -- which had been a taboo area -- although there are limitations as to what one might may about it. But I do not accept the account given in the White Paper regarding the alleged improvements in China's record on human rights. I believe this is the reason why the Paper has not been taken seriously in human rights circles. Lip service is not enough. It is simply hypocrisy(29).

There are those who say that for China, collective rights are more important than individual rights. This has also been the argument of the communist government who claims to have liberated the country from colonialism and imperialism, as well as what it calls, the "feudalism" of past oppression. However, what is implied is often that individuals should be sacrificed when necessary for the collectivity, and that those in power should decide what is good for that collectivity. The record of the Communist government speaks for itself in this regard. While it claims to have fought for the people's economic and social rights, the price it has exacted is far too great for the limited progress made to date. Dissidents comparing the present to the past usually find that there was less repression and more liberty before the Communist liberation than afterwards. The millions of refugees from mainland China who made the prosperity of Hong Kong also demonstrate their preferences for enjoying guaranteed liberties under a colonial government to "legally possessing" those rights accorded by a government which does not owe its mandate to the people whom it calls its own.

Before the Communists took over power, and in spite of great odds and many imperfections, the Republic of China had made halting progress with its judiciary system. Today, we can find encouragement in those East Asian countries and regions where the record has improved vastly, event if it is still not perfect. We have in mind the situations in Japan (where the post-war Constitution is American-inspired), and more recently in South Korea and Taiwan, which have all been influenced by the teachings of Confucian humanism. These countries and regions have experienced rapid economic modernization, accompanied by democratization and the more conscientious enactment and observance of human rights legislation. Taiwan, which also calls itself the Republic of China, is a bastion of Chinese culture, distinct from Hong King which has been a British colony, and is only now experimenting with a democratic legislative structure which the mainland government has threatened to dismantled, and from Singapore, an ex-British colony which likes to claim its own form of participatory democracy under a one-party government.

Hong Kong is scheduled for return to China in 1997. This event is much feared by the people there, who risk to lose their civil liberties. But we might understand how the Chinese authorities also feel uneasy about taking control over five and half million people accustomed to saying what they think and protesting China's political repression. This explains their uncompromising attitude toward efforts to further democraticise the structures of government in the British colony.

Hong Kong's voters have time and again shown their preferences for legislators and representatives that favor democratization. This too speaks of their readiness for democratic institutions. These have been late in starting, because the British authorities had not encouraged them, and the Chinese population had earlier chosen not to disturb social harmony. But the decision to return Hong Kong to the mainland was decided by London and Beijing over the heads of the Hong Kong population, who were rudely awakened, and again, a second time, by the Tian'anmen massacres. Confronted with the real threats to their accustomed liberties, the people of Hong Kong have demonstrated their concern, by their political participation locally, and by emigrating to the West. If democratization does not succeed in Hong Kong, one could not simply blame Chinese culture or popular inertia.

I believe there is a particular lesson to learn from the Taiwan experience. In 1947, two years before the Nationalist government moved its seat to that island, its army carried out a massacre of civilians. It occurred as a result of discontent on the part of the local population, who are of Chinese origin, but had been under Japanese occupation for the fifty years before 1945. These people had expected liberation, but found instead corruption. The spark that ignited the fire was a clash that took place when angry bystanders rioted over the police confiscation of a cigarette peddlar's goods on February 27, 1947. One life was lost that day. The following day, as the riot spread, troops fired on crowds. After the riot was suppressed, many among the island's better educated were arrested and even executed.

For more than four decades, the Nationalist government insisted that the riots were instigated by the Communists, and that the reprisal was necessary. But it gave no official report of this incident, until martial law was lifted in 1987. In February, 1992, the Taipei government finally came clean, with a 400,000 word document, which acknowledged the vast scale of the bloodshed. It appears that 18,000 to 28,000 native-born Taiwanese were killed during the riot and its aftermath(30).

The scale of that massacre is shocking, and a lingering legacy of mistrust remains between the islanders and those whose families came from the mainland. But we must not forget that the authorities in Beijing never released credible figures for victims of the June 4, 1989 massacre, and many believe that these are also in the higher thousands.

The authorities in Taiwan are struggling to heal the wounds of history. They are improving and implementing human rights legislation, including those having to do with women. For example, divorced women may now have custody of their children, who were previously assigned only to the fathers. With some luck, democracy may become more firmly established there--provided there is no external threat from the mainland.

The Chinese Communists have learnt from Japan, South Korea and Taiwan to modernize the country economically. They are maintaining a hardline, authoritarian government, as did South Korea and Taiwan earlier. In the future, China may follow the footsteps of South Korea and Taiwan in political liberalization as well. Whether this will happen from the top down or from the bottom up, people will know that guarantee of liberties should not be regarded as a privilege, but as a right.

Some say that China, together with other countries outside the Western civilization, has a different history and therefore a different destiny, and so one should not expect the Chinese to achieve a genuine democracy with protection of human rights. But this is tantamount to saying that such goals may as well be excluded from the Chinese agenda. There is an undertone suggesting that life is cheap in the Orient, and so what?

We could remind ourselves that some of the violence and bloodshed that the non-Western world has known in the recent past has come from Western imperialist adventures that basically changed the course of history for the world. While the Great Powers fished in troubled waters, they denied human rights to the rest of the world. And having done so, they provided and unleashed the forces of anti- imperialism that engulfed much of the world. In the wake of these events, the population of the non- Western world suffered even more, this time, from those of their own had learnt some of the wrong lessons from the imperialist powers: for example, that might makes right.

Chinese dissidents have shown time and again their courage to face death in order to gain liberty for themselves and others. Such conviction does not confirm that life is cheap but rather, that there is more to life than mere slavery.

In the West, the crucified Christ has been a reminder of the injustice of man to man, of the system to an individual. It has possibly served also as inspiration for the acceptance of human rights legislation. In China, countless individuals have suffered enormously, especially in the recent decades, for their political or religious opinions, and just because they were at the wrong place at the wrong time. Such suffering of the innocent cries out for change, so that others will be better protected.

The question of the future of human rights in China is a complex one. Let me conclude with a reference to the seventeenth-century French religious thinker and scientist Blaise Pascal, who said: "China obscures the issues, but the light is there to be found; look for it.(31)"

My hope is that China will yet turn its own darkness into light, and serve as a source of light to the world: a light in the midst of darkness, a light that will conquer the darkness.

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1) At the request of the Royal Society of Canada, I have previously prepared two reports: "Political Contraints to Freedom of Scholarship and Science: the Case of China," for a symposium held in Ottawa, 1991, and "Chinese Intellectuals Since Tian'anmen: The Continuing Difficulties," for the Society's Committee on Human Rights, when it was chaired by the late Hon. Walter Tarnpolsky, in 1992. The first is in press, together with other symposium papers, and the second will be printed for circulation within the Society. Back to Text

2) Given in the Chinese White paper, entitled, "Human Rights in China," published by the State's Council Newsroom. Preface. This aapeared in Beijing Review (November 4, 1991), 8-45. Its publication has led to a stream of discussions and books on human rights, usually supporting the government's line, but offering facts and explanations about human rights in general as well. Back to Text

3) A recent Western work on human rights in China is After the Event: Human Rights and their Future in China, ed. by Susan Whitfield (London: The Wellsweep Press, 1993), with contributions by Andrew J. Nathan, Jay Berstein, James D. Seymour, Chan Hong-mo, Liu Binyan and others. A somewhat earlier work remains useful: Human Rights in Post-Mau China, by John F. Copper, Franz Michael, and Yuan-li Wu (Boulder, Col., Westview, 1985).Back to Text

4) Traditionally, human rights have been spoken of as natural rights or universal moral rights, which are possed by all, and in some sense inalienable and indefeasible, because deemed to belong to the moral nature of things, whether recognized as such everywhere or not.Back to Text

5) There are many books on human rights. For example, Eugene Kamenka and Alice Erh-soon Tay, ed., Human Rights (London: EdwardArnold, 1978), includes international contributions from philosophers and legal experts.Back to Text

6) Article 55, in Walter Laquer and Barry Rubin, The Human Rights Reader (New York: New American Library, 1989), p.196. Besides its universal Declaration of Human Rights (1948), the United Nations has published International Conventions, such as On the Prevention and Punishment of the Crime of Genocide (1951), op.cit., 203-204, and organized International Covenants on Economic, Social and Cultural Rights (1966), the Elimination of all Forms of Racial Discrimination (1969) and the like. Quite explicitly, it recognizes "the inherent dignity and . . . the equal and inalienable rights of all members of the human family." Preamble to the United Nations International Covenant on Economic, Social and Cultural Rights., op. cit., p. 225.Back to Text

7) See The Human Rights Reader, pp. 198-200. These are examples of human rights in the civil or political domain, that reflect earlier discussions. There are other articles in the United Nations Declaration that have been called social and economic rights. See Maurice Cranston, Human Rights Today (London, Ampersand, 1962), 36-38.Back to Text

8) The Human Rights Reader, p. 198.Back to Text

9) See, for example, James C. Hsiung, ed., Human Rights in East Asia: A Cultural Perspective (New York, praeger, 1985), especially his own chapter, "Human Rights in an East Asian Perspective," pp. 3-17. Back to Text

10) See the publications in the mainland, such as The White Paper, Section 2.
Back to Text

11) Ann Kent, Between Freedom and Subsistence: China and Human Rights
(Hong Kong: Oxford University Press, 1993), especially chapter 2.
Back to Text

12) Consult Julia Ching, Chinese Religions (London: Macmillan, 1993), Ch. 3-4.
Back to Text

13) The Human Rights Reader, p. 197.Back to Text

14) Consult the Book of Mencius 1B:8. In fact, the Chinese word for king (wang) contained philosophically the meaning of a good king, even an ideal king.
Back to Text

15) I am referring to the Vindicae contra Tyrannos (1579) and to Mariana's De rege et regis instituione (1598-99).Back to Text

16) Julia Ching, Confucianism and Christianity (Tokyo: Konansha International, 1977), p. 193.Back to Text

17) "The Regulations of a King" in Hsun Tzu: Basic Writings, translated by Burton Watson. (New York: Columbia University Press, 1963), p. 46.Back to Text

18) "Identifying with One's Superiors," in Burton Watson, Mo Tzu: Basic Writings (New York: Columbia University Press, 1963), pp. 34-35.Back to Text

19) "The Five Vermins," in Han Fei Tzu: Basic Writings, trans. by Burton Watson. (New York: Columbia University Press, 1964), p. 96.Back to Text

20) Consult "A Manifesto for the Reappraisal of Sinology and Reconstruction of Chinese Culture," in Carsun Chang, The Development of Neo-Confucian Thought (New YOrk, 1963), vol. 2, Appendix. Back to Text

21) Consult sa Men-wu, Zhonguo fazhi sixiang (Chinese Thinking on Government by law). (Taipei: Yenbo Press, 1978). Back to Text

22) Julia Ching, Probing China's South Religion, Politics, Protest in the People's Republic (San Francisco, Harper & Row, 1990), 105-107. Back to Text

23) Probing China's Soul, p.18. Back to Text

24) See The Human Rights Reader, p.62. Back to Text

25) The American Declaration of Independence (1776) puts it this way: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." See The Human Rights Reader, p. 107. Back to Text

26) See mingyi dsifanglu, Sibu beiyao edition, ch. 1-3. Back to Text

27) Articles 35 & 37 of the 1982 Constitution. Consult Probing China's Soul, p. 168. However, certain rights permitted earlier were struck out, such as the right for workers to strike, and the right to air grievances on wall posters and to privacy in correspndence. Back to Text

28) (New York: Random House, 1994), p.74. Back to Text

29) ren Wanding, the founder of the Chinese Human Rights Alliance in 1979, sentenced then to four years' imprisonment, was once more arrested after the Tian'anmen crackdown in 1989, and remains languishing in prison to date (1994). Back to Text

30) The Philadelphia Inquirer, February 24, 1992. Back to Text

31) From Pascal's Pensees, Fragment 593 in the Brunschweig edition of Pascal's Oeuvres (Paris, 1904), XIV, p. 33. English translation by M. Turnell in his edition of Pensees (London, 1982), p. 229. Back to Text


Dan Maguire's Talk to the UN

Preface To Sacred Choices