Tuesday, March 2, 2010
China's Rule of Law is in Full Retreat
February 21, 2010
Attending today's lunch and hearing so much praise makes me feel very uneasy. I don't know how many times I have celebrated my birthday this year, and here comes Sun Guodong, hosting yet another event.
The first celebration was with fellow scholars and the second with my family, but I felt like something was missing. There was no event with lawyers, or rather we might say some lawyers wanted to have a birthday celebration for me but didn't have a chance. I think today's event might settle that. However, in listening to these words of praise my ears have pricked up, as I must say you have expressed aspirations I have definitely never fulfilled. Perhaps it was just the circumstances around me. Because today the situation for the rule of law in China is grim. So in these circumstances perhaps your expectations of me are even higher. But I think I have not been able to do enough.
Strictly speaking, in the 30 years of reform what I did was call for private rights. I chose civil law and private rights because those areas were weak in China, or rather in a China with such strong public powers, private rights were always in a weak position. Private rights include the rights of private enterprise, of private property, and perhaps even broader personal rights.
Today, I will just mention three issues, but these are not the same three you all just suggested. The first private right I will mention is the Shanxi coal mine problem [private coal miners were encouraged to invest then their mines were taken by the state at low or no compensation]. The Shanxi coal miners demonstrate a violation of the rights of private property and private enterprise, a brazen violation of constitutional guarantees.
The second is the Li Zhuang case [the defense lawyer convicted of inciting false testimony in the Chongqing mafia crackdown]. When Wu Xiaoji brought over Li's defense lawyer to talk to me, we chatted for a long time about what happened in court that day and the entire procedural history of the case. After hearing about it, I was furious. No matter what you think about it, from the most basic level, procedural justice was violated. The evidence was not brought out and many of the witnesses did not appear in court. From the perspective of evidence, that case had serious problems.
The third is the Liu Xiaobo case. When I heard about the Liu Xiaobo verdict, I felt it was a crime of speech -- a very dangerous thing. China has a long tradition of criminalizing speech, and if we let that tradition continue today, and if those with a sense of justice can't express their views, then our problems are just too serious. Or perhaps, for those of us engaged in the rule of law, if even we take a hands-off approach -- if there is not a single voice of justice among us -- then I think that is really dangerous.
So, looking at China's current situation, I think we are in a period where the rule of law is in retreat. Or perhaps, building the rule of law, judicial reform, and political reform are all moving backwards. This is my first thought.
My second thought: In the last two books I published, I used the term "cry out" in the title. The first book was called "What I can do is cry out." I recently published a book that I edited by hand, putting together some of my prior work in a careful compilation that I called "Private Rights Cry Out." This latest is part of a series of 100 works of top people in the humanities; in that series I am the only one from the legal field. Why did I choose the word "cry out," and why in the last two years? Of course, I have been enlightened by Lu Xun's example, but it is not only that. I think that choosing "cry out" is important because the situation has become more oppressive. That is to say the environment outside has become more and more difficult. In those circumstances, one must "cry out." No matter what words you choose, when the circumstances are urgent, you must call out with your voice.
I also use "cry out" to to be clear about another issue: we must both dare to fight and be good at fighting. Given the conditions for building the rule of law today, these two things need to be merged. This is something I have pondered a long time, and it is very difficult. Perhaps you are good at fighting but you don't dare stand up. Or you dare to fight, but lose your sense of proportion. Because the basic essence of the problem in China is problem of the Party's leadership, the foundation of the political system. If the political system does not reform, then nothing else can reform. If the political system does not reform, then your rule of law, your judicial reform, your anything-else will not be much of an achievement. In those circumstances, it is easy for you to "cross the line," to step into forbidden territory. So in China's circumstances how to put those two things together -- to both dare to fight and be good at fighting -- this is a formidable task.
I remember that Ji Weidong once wrote about this problem, and this has given me something to think about. He wrote: How is it that someone like Jiang Ping can exist in China's current political conditions, how is that he does not "cross the line" too far? Of course, the leadership values you, but they are also conscious that they need to be careful about you. I could be regarded as "inside the line" and also be regarded as "outside the line." That position is actually very difficult. I think that at this moment we should carefully position ourselves as in between of those "inside the line" and those "outside the line", this way everything will be a bit better.
My third thought is that overall I am still an optimist. In the past, I used to love to say that China's rule of law was two steps forward, one step back. I still haven't changed that view today. Because in terms of the protection of private rights, today's China is vastly improved over the past. Needless to say, this is the case in the last thirty years, or even more needless to say it is the case compared to the decade of the Cultural Revolution. In the 30 years of reform, with the "baptism" of the Property Law, rights consciousness about private rights protection has been enormously improved. The Chengdu self-immolation case, or other cases, already demonstrate that people's sense of private rights have woken up. Add the function of law to the awakening sense of rights consciousness and that is something that can be extremely powerful.
Twenty years ago, when we passed the Administrative Litigation Law, it was hard to imagine that such a law could help protect private rights. But today, whether by litigation or other methods, protecting your own rights is something we can say everyone understands. Everyone understands that their rights cannot be infringed. Perhaps in some places the projection of private rights is overlooked, or in some places it is abused. But no matter what, today when we stress protecting private rights, we want to stress two things: first, ordinary personal rights must be protected, but we also must pay attention to not abusing power. If we grasp this, everything will be fine.
So today I would like to thank everyone here. So many of you are still here. Some of the scholars have left, but you lawyers have persisted to the end. This also helps explain an important issue, as Pu Zhiqiang just put it as well. Like our lawyers today, more and more people are genuinely interested in the fate of China's rule of law. Lawyers definitely don't only want to make money; many lawyers have come to understand and think about our country's destiny, the future of the rule of law, and the protection of human rights. That way of thinking, and that theme, has already taken root in our heads.
I think this is very heartening phenomenon. I believe that China certainly has a bright future. The world trends are unmistakable: whether human rights, democracy, or freedom, these are irresistible trends. All the world's people are moving forward. That we are moving backward is only temporary. Or perhaps, for the time that some people reign, they can do as they please. But after he steps down, he has no status. I think this is the truth.