The Reconciliatory Power of History and Language on Debates on China’s Rule of Law

• Author: Norman P. Ho*

In April 2009, the Chinese government released a comprehensive plan entitled the “National Human Rights Action Plan of China 2009-2010” (hereafter referred to as NHRAP) that promised to improve human rights in China through greater rule of law. Among its many provisions, the human rights plan called for fair trials, increased government transparency, and protections for potentially vulnerable members in society, including senior citizens and children. Although the plan lacked specificity in some areas, most observers hailed the promulgation of NHRAP as a positive step and a physical, written testament to the growing importance China’s leaders are placing on human rights and also public participation in government.[i]

The NHRAP follows another major document entitled Charter 08 that was prepared and signed by a group of 303 Chinese citizens in December 2008, in commemoration of the sixtieth anniversary of the Universal Declaration of Human Rights. Charter 08’s adherents include intellectuals, business leaders, but also ordinary Chinese as well. In this document – aptly named to evoke Charter 77, a document signed and released in 1977 calling on greater democratic rights in former Czechoslovakia – radical, transformative policies to China’s political apparatus and structure were advocated, such as the democratization of government, the adoption of a completely new constitution, and absolute separation of powers. The Chinese government responded with its dissatisfaction, detaining some of the signatories.[ii]

In many ways these two documents represent historically opposite viewpoints on rule of law and the very place and purpose of law itself in China. A comparative discussion on these two documents is extremely timely, as the debate on the legal reforms and problems plaguing China continues today, especially since NHRAP’s effects will most likely be felt and seen in Chinese political reform in the upcoming year.

At first glance, it may indeed seem that NHRAP and Charter 08 two diametrically opposed documents. Some might argue that there is no possibility of reconciliation between them, thus quashing hopes for future reform. Debates over human rights and rule of law in China have historically been polarizing, relegating each side (usually crudely delineated as pro-Beijing and anti-Beijing) to separate corners. This polarization does not just have intellectual ramifications - Beijing itself viewed individuals ascribing to Charter 08 views as a threat to its political stability, ordering arrests, detention, and occasional harassment. However, this Article will attempt to show that NHRAP and Charter 08 (and more importantly, the views they represent) do share some compatible visions, assumptions, and ideas of what China is and what it might look like in the future.

Furthermore, each document can serve as a valuable resource for one another to address their own individual shortcomings– in particular, to pay more attention on issues of language and wording, and also a mutual need for tapping the great resources of traditional Chinese history. Indeed, this Article ultimately argues that both documents fundamentally want the same thing: a socially stable and developed China with concern for the people’s wellbeing, which can still be achieved largely through working within the current political system. As the principles of NHRAP are legislated in policy in the upcoming year, reconciling the debate of rule of law in this way can potentially bring about more intellectual and perhaps physical cooperation between two historically opposed sides.

Before we attempt to highlight the similarities and potentially mutually beneficial parts of both NHRAP and Charter 08, it is first essential to understand what sort of vision each presents of contemporary China, and what each sees as China’s most pressing challenges. In terms of their visions of China, both premise their discussion on the fact that China is still very much a developing country. After all, we must remember that great majority (over 50%) of Chinese citizens still live in the rural areas and anchor their lives on agriculture. If we look at the structure of the NHRAP, it is significant that the very first section (after the Introduction) is “Guarantee of Economic, Social, and Cultural Rights,” and not “Guarantee of Civil and Political Rights.” The bulk of this section is focused on ensuring stable employment and a “basic standard of living,” reducing industrial accidents (with very clear, quantitative-centered statistics and benchmarks), and perhaps most telling, increasing the life expectancy and reducing the infant mortality rate.[iii] To a reader from the United States, it may seem odd to spend the bulk of the text (with great specificity) on these issues – but the picture the NHRAP wants to paint of China is clear – China is still a “developing country with a population of 1.3 billion,” a nation that must contend with the limitations of “nature, history, culture, economic and social development level, and other factors.”[iv] And the NHRAP also makes very clear that China is still developing in all sectors of society – from environmental reform, building up grassroots political and social organizations, and creating government websites, just to name a few. What are the implications of presenting this vision of contemporary China? Through this picture, the NHRAP presents perhaps a slightly different definition of “human rights” than Charter 08 – for the CCP (Chinese Communist Party), it will “give priority to the protection of people’s rights to subsistence and development, and lawfully guarante[e] the rights of all members of society to equal participation . . . on the basis of facilitating sound and rapid economic and social development (emphasis mine).”[v] In other words, NHRAP’s view of human rights is that it is instrumental, to support the development of the Chinese state. Furthermore, while human rights include political and civil rights, those are not nearly as important as ensuring that every Chinese is first well-fed, well-clothed, and employed. Indeed, this emphasis on the “human right to subsist and survive” is not new in the Chinese tradition – the pre-Qin politician, Guan Zhong (725 BC – 645 BC), said: “only when the national granaries are full, will the people know propriety [rites] and correctness,” and that a country could not hope to be at peace without first attending to its citizens’ material deficits.[vi]

Charter 08 also presents a vision of China as underdeveloped and in the process of development – but the emphasis of the document is on providing more civil and political rights to China’s citizens. For the...