Thursday, April 8, 2010
Here's a recent essay on re-education through labor by Prof. Li Dun of the Chinese Academy of Social Sciences. The essay appeared in the April 7 issue of Southern Metropolitan Daily. Here's a rough English translation, courtesy of Jeffrey Prescott.
Only Protecting Rights Can Protect Stability
Southern Metropolitan Daily
April 7, 2010
The legislation changing "re-education through labor" into "education and correction for illegal acts" was not passed in the 10th National People's Congress, as some had hoped. The 11th Congress just held its third session, and again a draft proposal was put forward. Public debate has been unceasing. There is a saying that the difficulty with this law is in reconciling two interests: that of "protecting the lawful rights and interests of those subject to re-education through labor," and "to let the RETL system play its role in protecting social order and stability." They may be labeled as "parties to re-education" or in other places are labeled as those stripped of their liberty "in order to protect the rights of the great majority" or those who have their rights "controlled" or "cut down" (克减). But are protecting people's rights and preserving social stability really in conflict?
How do we decide the nature of some people's behavior or some social phenomena? What kind of response should law and policy give to this behavior and phenomena? What ideas support and sustain our system and its reform, and what should those ideas be? In the transformation of China today, we need to seriously consider these questions.
Whether the old system of RETL, which exists today, should continue into the future, is not only a question of whether its legal basis is sufficient. It would be easy to make a new law of the State Council's regulations in 1957 and 1982, and the Ministry of Public Security's trial measures on RETL. It could be passed as is by the Standing Committee of the NPC. And it is not only a question of whether this type of decision on "administrative punishment that restricts personal liberty" (Administrative Penalty Law) must come from a court decision. Because history demonstrates that court judgments alone are not a guarantee of justice and freedom from error. And it is definitely not only because it is applied in an arbitrary and chaotic fashion, or that it may be used by party and government officials to strike against those reporting on corruption, or petitioners, or those involved in mass incidents. Because for many years different laws and policies have been in conflict with one another, and law enforcement officials have used their own differing standards in applying the rules. This could be resolved by careful efforts to standardize decision making. But arbitrariness in applying the law and in the use of official power, and judgments that pervert the law, is not something that a new legal basis will be able to resolve.
The essential distinction in the formulation of law and policy lies in either "putting people first," in accepting, respecting, and protecting people's rights, or in what we once experienced as "putting the state first" -- namely, in putting the abstract interests of the whole first (or we could say "the interests of the great majority"), a uniform system of organization, mobilization, conflict, management, and control. We have experienced class struggle in the planned economic system, and a long period of "focusing labor on building the economy." So we should know the great significance of "putting people first" and "harmony," and of adding protection of human rights to the constitution. Can we genuinely complete a historic transformation and truly "make 'putting people first' the core" in the formulation of our national laws and policies? We need to understand that in rule of law countries legislation cannot strip people of their basic rights. We need to understand that a modern, democratic, rule of law country is made up of citizens, one by one. That state interests are citizens interests, and citizens have pluralistic interests. And that an important function of policymaking is to coordinate and balance competing interest so that society can be harmonious.
The original system of re-education through labor is an inevitable product and organic component of the planned economic system. At that time, those in RETL were considered class enemies, or handled as "contradictions among the people." The reason these people were "controlled" was that, in that period of history, there was no basic acceptance of "individual liberty." The government and private as separate and opposed spheres did not exist. When the mentality is that the overarching interest trumps all, any individual's liberty can be stripped or controlled. That way of thinking and behaving is the legacy of the planned economic system, and is with us today -- and will influence the formulation and implementation of our policies and laws for a long while to come.
In important Party documents, it once stated that for historical reasons, our society lacks and needs to build four mechanisms: for safeguarding rights, for raising appeals, for coordinating interests, and for arbitrating conflicts. Only with these four mechanisms will rights be accepted, respected, and protected. Only then will appeals receive systematic channels for protection. Only then will the competing interests of those in power and of society be coordinated and arbitrated under the framework of the rule of law. This would perhaps make our conflicts melt away, and would be a good start toward making society fundamentally harmonious and stable.
In a country with the rule of law, the essential of policymaking is to first accept, respect, and protect rights. In punishing people and in "restricting" or "cutting off" people's rights, there are preconditions that must be satisfied and cannot be replaced. [Number one is omitted; perhaps edited out.] Number two is that there must be a neutral judiciary that uses predetermined rules of procedure to reach judgment. The judiciary must have the function of remedying violations of rights. In addition, there must be some specific technical arrangements for standards, rules, and procedures -- it should be that way for the Education and Correction of Illegal Acts Law, and for the formulation of every other law.
Countries with the rule of law want good law. Evil laws go against the principles of the rule of law, because every citizen is on guard against them.
(The writer, Li Dun, is a professor of the Chinese Academy of Social Sciences, and the leader of the expert network of the Tsinghua University Research Center for Contemporary China. This essay was originally published in "Liaowang.")
Wednesday, April 7, 2010
It is often claimed by the Chinese government - as well as some foreign observers who ought to know better - that China never responds to external pressure and that such pressure is always counterproductive. This has always seemed like obvious nonsense to me: if Chinese leaders really did have this infantile mentality, foreign governments could manipulate them to do anything. The US would send officials to press China to persecute the Dalai Lama and point more missiles at Taiwan. In reality, it's more likely that Chinese leaders, like everyone else, respond to a range of incentives of both domestic and foreign origin. Sure, they have to worry about how RMB revaluation (for example) will play domestically and can't appear to be bending to foreign pressure, but of how many national leaders is that not true?
For what it's worth, Gao Zhisheng's reappearance is a data point in this debate. It's impossible (at least for me; perhaps not for others) to imagine that he would be chatting with an AP reporter, in at least passable health, were it not for foreign pressure. Of course, better treatment for one person in response to foreign pressure is not the same as a major change in policy in response to foreign pressure. And the fact that foreign pressure sometimes works does not mean it always works. Still, it's a data point to keep in mind whenever you hear the claim that "China will never act under foreign pressure."
Tuesday, April 6, 2010
I've been asked to post the following announcement. Actually, I was asked in February, but I'm behind on my e-mail. Blame me, not the organizers, for the fact that the deadline for submitting abstracts has already passed. Sorry about that.
The OYCF-University of Chicago Conference on
“China’s Legal Reform at Crossroads”
--- The 12th OYCF Annual Meeting
A conference on the theme “China’s Legal Reform at Crossroads” will take place on May 29-30, 2010 at the University of Chicago, Chicago, Illinois. The conference is being planned by the Overseas Young Chinese Forum, with co-sponsorship from the Center for East Asian Studies (CEAS) at the University of Chicago.
The thematic choice of this year’s conference is in accordance with OYCF’s commitment to China’s development and advancement. In the past eleven years OYCF annual meetings have covered a variety of topics related to the development of China, including sustainable development, civil society, women, rural problems, social classes, cultural production, globalization and nationalism, and the financial crisis. We believe the reform of China’s legal system from 1979 to the present is a topic of equal importance and deserves our attention.
We call for paper submissions from all disciplines working in the China field. Potential topics include, but are not limited to, the following:
- Legislative changes and debates in different areas of Chinese law;
- Reform of the Chinese judicial system;
- Development of the Chinese legal profession;
- Reform of the Chinese criminal justice system;
- Impact of the Communist Party and the government on the legal system;
- Mediation, letters and petition, and other alternative channels of dispute resolution;
- Legal consciousness and mobilization of Chinese citizens.
The conference is bi-lingual so the papers can be written and delivered in either English or Chinese. Deadline for submitting an abstract (1-2 pages) is April 2, 2010 (Friday), along with a brief C.V. that lists your credentials (e.g., professional experience and/or publications). Please send your materials or inquiry via email to email@example.com. A notification of acceptance will be sent by April 16, 2010 (Friday).
The OYCF will publish a summary of the conference panels and selected papers on its electronic journal “Perspectives: China and the World.” For more details about the OYCF annual meetings, please visit: http://www.oycf.org/oycfold/httpdocs/Retreats/retreat.htm.
The Overseas Young Chinese Forum (OYCF) OYCF is a self-governing non-profit organization established in 1999 to provide a forum to discuss issues related to China’s development and to explore solutions. Among other activities, OYCF sponsors teaching and research in China, publishes an on-line journal (Perspectives: China and the World), organizes local discussion groups, publishes book series, and holds a conference each year. OYCF’s annual conference is increasingly becoming a major forum for China-related studies. For more information about OYCF, please visit the organization’s website: www.oycf.org.
The Center for East Asian Studies (CEAS) at the University of Chicago works to enhance opportunities available to scholars both in the United States and abroad, and to foster communication and inter-disciplinary collaboration among the community of professors and students at the University of Chicago and throughout the wider East Asian Studies community. To these ends CEAS and its Committees sponsor a variety of activities including colloquia, workshops, conferences, public lectures, film series, cultural events, and other programs that promote understanding of the cultures and societies of China, Japan, and Korea. University of Chicago faculty and programs in East Asian studies regularly achieve the highest rankings among peer institutions in the United States, making East Asian Studies at the University of Chicago an invaluable national resource and a focal point for East Asian Studies in the Midwest. For more information about the CEAS at the University of Chicago, please visit http://ceas.uchicago.edu/.
Let me quote from the South China Morning Post report:
Peking University severed ties last week with a high-profile women's rights advocacy group [the Women's Legal Research and Services Center (妇女法律研究与服务中心)] under its auspices, sending further chills through the mainland's NGO community, which fears a new era of tightened government control.
In a public notice dated March 25 on the university's website, the social sciences faculty announced it was "cancelling" four research institutes set up under its name, and that any further actions carried out by them would have nothing to do with the university.
The four institutes include three from the law department - the Women's Legal Research and Services Centre, the Public Law Research Centre and the Constitution Research Centre - and one from the media department, the Finance News Research Centre.
(I've been holding off on blogging about this because I was hoping to get a linkable news report, but so far no newspapers in all of Westlaw's database has seen fit to report on this but the South China Morning Post, for which you have to have a subscription. Here's a synopsis of the SCMP report, which in fact contains almost every word.) As usual, the authorities have put on their "nothing to see here, folks; move along" face: according to the SCMP report, "The dean of social sciences, Cheng Yuzhui, told Beijing Youth Daily yesterday that the cancellations were just routine restructuring of the university's research institutes, removing 'some institutes that no longer suit the current trend'."
Here's a statement issued by Guo Jianmei, the Center's head, and her team in English and Chinese:
On 25 March, the Division of Social Sciences, Peking University, published a Notice of Cancellation of Organisations on the University’s official website. The Center for Women's Law & Legal Services was one of the four on the list. The days that followed were filled with calls of concern and support from the media, NGOs, partners, the relevant authorities, friends and persons whom we have helped. We are touched, and we are grateful!
To an entity that has been single-minded in purpose and enterprise for the last 15 years, expulsion from the Peking University family is a major and unexpected setback which affects more than just the entity itself. For the Center for Women's Law & Legal Services of Peking University is a symbol of deep significance. To the country, it is an industrious pair of hands that helps build social harmony. To the weak and the vulnerable, it is a ray of light that offers warmth and hope. To NGOs and our partners, it is a fellow comrade on the frontlines, enforcing the rule of law and advancing good for the civil society. To the people at large, it is a deliverer of social conscience and the spirit of law. And to every member of the Center, it is our common home.
As such, to those who have cared and still continue to care, I would like to say a few last words about this name that has become history:
I. In 15 years, we have lighted up more lives than the sun has.
Since the Center’s inception in 1995, our aim was to provide legal aid, protect women’s rights, and promote gender equality. Equity and justice were not only the Center’s tenets, but the belief and ideal espoused by every member. As the first public interest organisation in China that specialises in providing legal aid for women, we were one of the earliest private legal aid practice. While demand for legal aid among the vulnerable was high, State legal resources were scarce. The Center thus became an expedient complement that plugged gaps in the government’s legal aid services. It has since, helped more than 100,000 women victims obtain recourse to justice.
In 2004, to meet the increasingly diverse needs in women’s rights protection, the Center began providing public interest litigation services, and was soon to become an important force in public interest legal practice. Absent a public interest litigation framework, the Center set itself to legal and policy improvement and reform by working on typical cases, incorporating the protection of the individual rights of women into the overall rights of citizens, to ensure impact. The cases involved important and difficult issues as gender discrimination in the workplace, labour rights of women, sexual harassment in the workplace, violence against women, rights of female migrant workers, and rural women land rights. And by employing different approaches in legislative advocacy, the Center has expanded its beneficiary population.
Our efforts have rendered power to the law and to legal aid. A victim once told us, “the Center is like a lamp, glowing of equity and justice, exuding warmth in the cold, and shedding light on the darkness ahead. She spoke not only for the many weak and poor women, she spoke also for the meaning of our enterprise.
The Center has become a sphere of influence that motivated many later-comers. Consciously, it took on the responsibility of providing legal aid, conducting public interest litigation, organising public interest legal advocacy, and training public interest lawyers. In 2002, a legal aid collaboration group was established, so as to enable more organisations and institutions to participate in the delivery of legal aid. In 2007, the Center founded the Public Interest Lawyers’ Network for Women’s Rights, and in 2009, the name was changed to China Public Interest Lawyers’ Network. The Network currently comprises more than 300 brilliant lawyers from more than twenty provinces and cities, providing legal aid for thousands of poor and vulnerable people. I still remember the Network’s launch ceremony on 15 March 2009 at the Centennial Lecture Hall at Peking University, where leaders from authorities as the Ministry of Justice’s Department of Legal Aid, Center for Legal Assistance, All-China Lawyers’ Association and the Beijing Lawyers’ Association turned up to show their support. The speech given by Professor Zhu Suli, Dean of Peking University Law Department remains vivid in my mind.
In September 2009, Ms Guo Jianmei, public interest lawyer and head of the Center founded Qian Qian Law Firm. Specialising in public interest law and public interest legal activities, and comprising professional public interest lawyers, Qian Qian has expanded its scope to benefit a broader spectrum of vulnerable persons such as the disabled, migrant workers and the aged.
15 years of innovative approaches and effective outputs have not only profited the poor and vulnerable women; the Center has also grown to become an influential and credible NGO. It has earned praises and won awards. In February 2006, in their congratulatory note to the Center’s tenth anniversary, Professor Min Weifang, the Party Secretary of Peking University, and Professor Xu Zhihong, President of Peking University, said, “the Center for Women's Law & Legal Services of Peking University has observed Peking University’s glorious tradition of patriotism, progress, democracy and scientific approach. By seeking relentlessly, developing aggressively, and improving constantly, it has achieved commendable results, contributed to the progress and advancement of women’s rights protection and legal aid delivery, and served its role in fostering harmony. Its work has won interest, support and tribute of the society and its peers, recognition and respect from women at large, and glory for Peking University!”
As Premier Wen Jiabao said, “Equity and justice glow brighter than the sun.” Indeed, equity and justice are of supreme value and significance to every individual, every country, and every nation. The Center shall be a faithful and determined perpetuator of this worthy cause.
II. Hurdles deter us not, but spur us on.
Cancellation by Peking University was not our first setback. The Center was nearly closed down during its initial days, only to be followed by one challenge after another. Funding was a major problem, as those days, funding channels were few and funding systems unregulated. Fund shortage stymied NGO development, and was the major obstacle to the Center’s growth.
Talent is another problem, especially when the Center, as a professional organisation, was in need of well-qualified legal professionals. Attracting and retaining talent in a society of low public interest awareness and driven by utilitarianism was a huge difficulty. So were balancing ideals and the reality, dedication and compensation, and spiritual fulfilment and material satisfaction.
Our work is also hampered by a deficient legal environment, flawed enforcement systems, administrative interference, local protectionist policies, industry protectionism, even corruptive practices within the judicial system. Persistent overwork leading to physical and mental stress of the Center’s members is also a permanent problem.
Cancellation is also not the gravest difficulty we have faced. We were even threatened with physical harm. When angry villagers in that remote village let go of their tightly clasped sticks, convinced by our steady and determined gaze, we knew we could never be beaten. Because justice is what we pursue, and justice will always triumph.
Difficulty is only an excuse of the weak and the feeble. To go-getters with conviction, difficulty is impetus to move mountains. Difficulty is but snowfall before spring comes. And snow melts. Thereafter, a spring breeze will blow away, bringing forth myriad blossoms and an enchanting fragrance.
III. Farewell, Beida! But our pursuance of equity and justice shall endure, and our belief in the rule of law shall prevail.
We have several members on our team who are Peking University graduates. They were inculcated with knowledge and intellectual depth, and nurtured with democratic sensibilities and humanistic values––the motivation for their choice of a public interest career. Cancellation was saddening to Guo Jianmei. This is not the Beida that she once knew. Guo’s resolute embarkation on a public interest career was guided by her Beida predecessors and the Beida spirit. She hopes that many will understand her sense of desolation and feeling of betrayal.
But desolation is one thing, Guo Jianmei and her team are as eager and as passionate as ever. They are convinced that legal aid and public interest work is what the people need, and what a harmonious society must have. These needs are revealed by the Center’s work during the last 15 years, spoken by the sacks of millet and sweet potatoes, and the hundreds of thank-you banners from those poor and vulnerable clients, and proven by the numerous awards that the Center has won.
The Center may have become a chapter in history, Qian Qian is for now and the future.
The Center has devoted itself to serving women’s rights, giving legal aid, and growing as an NGO. The least it has done is to have sent this message: Private legal aid organisations must and will play an indispensable role in China. Given the national circumstances, charting new frontiers, will require dedicated and valiant fighters, and they should be recognised and encouraged.
The future will be bright, and we will stick to our goal and continue on. The road may be treacherous, and the view along the way may not be always pleasant. But the meaning of life is about keeping our feet on the ground, undeterred, and making our way toward our ideals.
We have no complaint, we have no regret.
We thank every entity and every friend who cares for and who supports us. We have you, who will walk with us.Former Center for Women's Law & Legal Services of Peking UniversityApril 1, 2010我们的话