Waiting For Rights China's Human Rights and China's Constitutions, 1949-1989

Waiting for Rights: China's Human Rights and China's Constitutions, 1949-1989
Author(s): Ann Kent

Source: Human Rights Quarterly , May, 1991, Vol. 13, No. 2 (May, 1991), pp. 170-201
Published by: The Johns Hopkins University Press
Stable URL: https://www.jstor.org/stable/762659
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HUMAN RIGHTS QUARTERLY
Waiting for Rights: China's Human

Rights and China's Constitutions,
1949-1989
Ann Kent*
1. INTRODUCTION
The outbreak of peaceful protest in China from April to June 1989 has serv
to highlight lacunae in the existing Western literature on human right
China, both in a definitional and methodological sense. In terms of t
definition of "human rights," the emphasis of Western scholars on the con
dition of China's civil and political rights to the exclusion of its social a
economic rights has led to two main consequences. First, in the decade after
1978 China had made considerable informal progress in the condition
the freedoms of thought, speech, association and assembly. Thus, in
realm of public policy, objection to the limited extension of those righ
seemed grudging and inappropriate, although at the same time Amnes
International pressured China to legally protect those newfound rights
addressed the problem of capital punishment in China.
Nevertheless, many observers, particularly foreign governments, to
refuge in the expectation that it would just be a matter of time before
improvements in the informal situation of civil and political rights in Chin
would penetrate the formal legal apparatus of rights, particularly in view o
the leadership's pledge to institute a rule of law. Those who did critic
China's civil rights often objected to the Chinese practice on human rig
issues canvassed in more advanced Western nations, such as birth cont
the lack of free choice of work and freedom of movement, and proper
* In writing this article I have benefited from discussions with Philip Alston, Peter Bail
and J.P. Fonteyne, Faculty of Law, Australian National University, Canberra, and from
comments on an earlier draft by James Cotton and Chris Buckley, Research School
Pacific Studies, Australian National University. This paper was originally delivered at t
Asian Studies of Australia conference in July 1990.
Human Rights Quarterly 13 (1991) 170-201 c 1991 by The Johns Hopkins University Pr

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1991 Waiting for Rights 171
rights. Such objections may be less a

conditions than the basic issues of fre
and assembly, freedom from arbitrary
the right to life in its broadest sense. T
liberal value system to China's human r
the coinage of the critique.
Moreover, this one-sided emphasis o
Western analyses has disguised the r
rights which occurred over the decad
1989. These rights had been the heritag
as their birthright by most Chinese w
very Western expectation that the de
not only wiped out the popular memory
down effect, had brought a general p
obviated the continuing need for a s
security infrastructure was a miscalc
analysts. In fact, as it turned out, th
rich nor blank by the decade of the F
the April-June 1989 protests can only
of a dual revolution of rising expectat
rights and of relative deprivation, an
socioeconomic rights.'
II. "HUMAN RIGHTS" IN CHINA: A PROBLEM OF DEFINITION
Because human rights are a cluster of values derived from internationa

consensus, the problem of their definition is first and foremost an internationa
one. Both socialist and Western states at times choose, for political purposes,
to interpret the concept "human rights" as representing primarily the civil
and political rights which are given priority by Western states. This political
sleight of hand should not disguise the essential fact that in internation
law, the contemporary usage of the term embraces the whole spectrum o
civil, political, social, economic, and cultural rights.
This contemporary definition must be distinguished from the Western
usage of the term which predates the Universal Declaration of Human Rights.
Insofar as the term was used, "human rights" was taken to refer to the civil
and political rights deriving from the ancient notion, of Grecian origin, o
the "natural" rights of the individual. Articulated in the American Declaration
1. Ann Kent, Human Rights in the People's Republic of China: National and Internationa
Dimensions (Canberra: Peace Research Center, Australian National University, 1990) 2,
67.

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172 HUMAN RIGHTS QUARTERLY Vol. 13
of Independence (1776) and the French Declarat

and of the Citizen (1789), as well as in other bills
or "natural" rights became known as the "first
were regarded by socialist and developing nations as
culture and notions of individualism.
For this reason, the full text of the Universal
Rights of 1948 was not limited to the elaboration
but added to the civil and political rights in the
set of new "economic and social" rights, or the
human rights. After the adoption of the Univer
nants-the International Covenant on Civil and P
International Covenant on Economic, Social an
adopted in 1966. The latter foreshadowed the "th
which emphasized the right to development and
that human beings form peoples who are entitled
nation and control over their own natural resources as well as to live in a
peaceful, healthy, and economically developing environment.
Any objective discussion of human rights, in China as elsewhere, must
therefore focus on civil, political, social, economic, and cultural rights, as
articulated in the Universal Declaration of Human Rights and the 1966
covenants. "Civil rights" may be understood as conferring rights of immunity
upon the individual, as requiring noninterference from others and as "not
normally dependent upon general social conditions."2 They include freedom
of thought, conscience and religion, expression and association, residence
and movement; every person's right to life, free from arbitrary killing, torture,
or mistreatment; freedom from slavery, arbitrary arrest, or detention; and
equality before the law.3 Political rights may be defined as rights of partic-
ipation and include the individual's right to "take part in the government of
his country, directly or through freely chosen representatives"; the right of
access to public service; and the right of election and recall of government
on the basis of "universal and equal suffrage" by secret ballot.4
Social and cultural rights, in the form of claims to benefits from the state,
may be understood as rights of consumption, allowing access to social
security, to education and to "the cultural life of the community." Social
rights include "the right (of everyone) to a standard of living adequate for
the health and well-being of himself and of his family, including food,
clothing, housing, medical care, and necessary social services, and the right
2. Eugene Kamenka, "Human Rights, Peoples' Rights," Bulletin of the Australian Society of
Legal Philosophy 9 (June 1985): 157.
3. Universal Declaration of Human Rights, signed 10 Dec. 1948, G.A. Res. 217A (111), U.N.
Doc. A/810, at 71 (1948); International Covenant on Civil and Political Rights, adopted
16 Dec. 1966, entered into force 23 March 1976, G.A. Res. 2200 (XXI), 21 U.N. GAOR,
Supp. (No. 16) 52, U.N. Doc. A/6316 (1966).
4. International Covenant on Civil and Political Rights, art. 25.

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to security in the event of unemploym

or lack of livelihood in circumstances be
which suggest not only the right of c
right of participation in the work force
choice of employment, to equal pay fo
sonable limitations of working hours and
also include the right to strike, which, to
of association, comprise a special categ
In attempting to apply these internati
however, one faces the intrinsic inadequ
rights doctrine. The rights formulated
two covenants are seen by Eugene Kam
muddled, containing rhetoric and cru
other."7 Most importantly, the docum
sharp and fundamental clash between
the power of the state, and social, econo
demand ever-increasing state organizat
tions which resolve this contradiction,
stitutions which provide that "all rights
codes shall be exercised only in confor
political system of the country and th
Inconsistencies also exist, as Peter B
of basic principles, between the right
punishment (both contained in Article
Civil and Political Rights); between th
freedom of expression and information
Political Rights, Articles 17 and 19); betw
ment and the right to work (Internat
Rights, Article 12, and International
Cultural Rights, Article 6); and between
the right to an adequate standard of li
and Political Rights, Article 1, and In
Social and Cultural Rights, Article 11).
In relation to China the problem of
5. Universal Declaration of Human Rights, art

6. Ibid., arts. 23-24.
7. Kamenka, note 2 above, 156.
8. Ibid., 157.
9. Ibid.
10. Peter Bailey, Human Rights: Australia in an
1990), 20. In pointing out these contradiction
in emphasizing that both groups of rights, civ
involve claims on the state. He cites the rig
expensive claim. Ibid., 13.

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tions. As a socialist country, China has conforme

socialist and third world countries which emphasi
aspects of human rights and consider the aspira
realizable mainly through collective social and ec
to this formal Marxist view, political rights and equa
have been seen as symptoms of social and econo
rights arise from state ownership of the means of p
distribution of wealth. While Western states em
abstract nature of the individual's civil and political
as secondary, concrete, non-universal, and cont
social and economic rights but views all rights as co
non-universal and subordinate to state sovereignty a
has also interpreted the collective political right
peoples, articulated in Part 1, Article 1 of the In
Civil and Political Rights, as stipulating the liberatio
peoples from colonial domination, which, by ext
that foreign states shall not interfere in the life of t
will of the government."12
This collective view of rights is, moreover, bol
traditional concepts of society, the state, and th
traditional Chinese view, society is an organic w
rights prevail over individual rights and the state is
those rights. Attempts by some China scholars to
ren and yi, of traditional China with the notion of
in the wellbeing of the people as individual mora
itative logical leap from the collective notion of "
which it represents, to the notion of the quintessenti
which it does not.13
Wang Gungwu has convincingly established th
the quan, or rights, of the state came before the qu
Moreover, he has shown that even in the early twen
voices were raised on behalf of individual rights, th
power to remove corruption and anarchy as well as r
to the warring provinces of China meant in effec
issues of rights and duties would simply have to
of the state in traditional China, combined with
11. Kent, note 1 above, 11.

12. Antonio Cassese, "Political Self Determination-Old Conc
cited in Kamenka, note 2 above, 155.
13. See John F. Copper, Franz Michael and Yuan-li Wu, Hum
(Boulder, Co.: Westview Press, 1985), 11-12.
14. Wang Gungwu, "Power, Rights and Duties in Chinese Hi
Morrison Lecture on Ethnology" (Canberra: Australian Na
The title of this article, "Waiting for Rights," is taken from th

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personalized justice of Cemeinschaft

diation, reconciliation, social harmony
vide the traditional background to th
state, at least up until the last decade, w
rather than by law and as possessing
that it was invoked, intervened on b
individuals, vested in the sovereignty o
Attempts to establish consistency
and the individual civil and political
however well meaning, are also misgu
mately a national standard of values
national cultural and legal terms. In a
ternational norms, the luxury of cult
indulge. All states, particularly memb
to measure their national practice of
established by international consensu
The Universal Declaration, which, a
raculously" agreed to in 1948 by the U
forty-eight supporting votes and no dis
with the two covenants and the optiona
international statement of the Intern
Rights has been added the 1986 Decla
which deals with different aspects of
political rights, and economic, social
phasizes their inseparability.'7 It is in th
relationship must be sought between
tional values.
Common features can in fact be foun
and economic rights in the Universa
and economic rights, and in the Decla
but also in the provisions of the cove
has been argued elsewhere, the condi
before June 1989, wherein informal
panding, together with related Chine
brought Chinese theory and practice re
before to the international standards se
15. Alice Tay, "Communist Visions, Communi

the Australian Society of Legal Philosophy
16. Bailey, note 10 above, 1.
17. Ibid., 16.
18. Kent, note 1 above, 57-63. A similar argument may be found in Wang Delu and Jiang
Shihe, eds., Renquan Xuanyan [Declarations of Human Rights] (Beijing: Qiushi Chu-
banshe, April 1989), 4-5. See also Roberta Cohen, "People's Republic of China: the
Human Rights Exception," Human Rights Quarterly 9 (November 1987), 448-549;

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words, although human rights do not require justi

and legal terms, congruence can be discovered
values and international norms; it is a congruen
Chinese theory and practice of the late seventie
than from the traditional belief system.
III. HUMAN RIGHTS IN CHINA: A QUESTION OF METHODOLOGY
There are various ways of assessing the condition of human rights in China.
One method is to apply a model of human rights based on the Universal
Declaration and its covenants to China's actual situation of human rights.
This is the approach adopted by a number of scholars.19 But perhaps the
most useful methodology is a two-step process that involves first a com-
parison between international standards of human rights and national norms,
most accurately reflected in a state's constitution or constitutions. Only when
the gap between internationally prescribed ideals and national legislation
has been explored should the second step be initiated: an examination of
the relationship between the constitutionally guaranteed principles and
changing empirical reality.20 This approach has the virtue of accurately
reflecting the dynamic relationship between intern., nal norms, national

norms, and empirical rqality; it also exploits the potential of human rights
to serve as an instrument to monitor the changing political, social, and
economic conditions of the nation state. It thus facilitates an understanding
of some of the tensions which led to the 1989 Democracy Movement in
China.21
At the same time, it must be cautioned that, for a number of reasons,
such a methodology can only be an approximate, or rather, heuristic device.
Hungda Chiu, "Chinese Attitudes toward International Law of Human Rights in the Post-
Mao Era," in Chinese Politics from Mao to Deng, Victor C. Falkenheim and Ilpyong J.
Kim, eds. (New York: Paragon, 1989), 237-70.
19. This approach has been generally followed by Yuan-li Wu et al., Human Rights in the
People's Republic of China (Boulder, Co.: Westview Press, 1988) and in Copper, Michael,
and Wu, note 13 above, although reference is made to Chinese constitutional provisions.
It has also been followed in James Seymour, China Rights Annals: Human Rights De-
velopments in the People's Republic of China from October 1983 through September
1984 (New York: M.E. Sharpe, 1985).
20. This is the methodology adopted in R. Randle Edwards, Louis Henkin, and Andrew Nathan,
Human Rights in Contemporary China (New York: Columbia University Press, 1986) but
these authors give greater emphasis to the comparison between national and international
norms via comparisons with the Chinese constitutions, and less to the charting of the
informal exercise of those rights. It is also adopted in James Seymour, "Human Rights
and the Law in the People's Republic of China," in Falkenheim and Kim, note 18 above,
271-97.
21. For this reason, the emphasis in this paper is on the rights of Han Chinese, rather
on the related issue of Tibetan and minority rights.

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First, it must be observed that this a

stitutions as a central point of referen
of constitutionalism in China. Yash Gh
constitutionalism and the rule of law in
Ghai points out that in third world
constitution, in creating political order,
promoting national unity and loyaltie
and safeguarding human rights, has b
On the other hand, the objective so
these countries make it difficult to e
general rules. The circumstances in wh
force in the process of accumulation
that accumulation reinforces the author
corruption and repression. Moreover,
tions is less important than in the W
developmentalism, religion, or racism -
practices, are invoked as legitimation.
However, if constitutions are acknow
nonetheless the best available guides t
and institutions. In China which has h
promulgated in a distinctive social and
stitutions tend to be more like politi
socialist constitutions like China's are mo
they act as guides to the state's prev
which the current political and social con
qualification which should be stated in
the analysis of the relationship betwee
does not assume a fixed causal link bet
and the fact of social and political unr
and social disaffection come from dist
the radical divergence of constitutional g
of their exercise in society is a barom
exacerbate them.
Finally, the focus on China's constitu
stitutions are the only source of legall
the state has the power to limit rights b
rights by law. Thus China's Criminal Law
came into effect in early 1980, institutio
rights to defense and safeguards against
in the current constitutions. Convers
22. Yash Ghai, "The Rule of Law in Africa: Ref

Conference Papers of the Ninth Commonwea
495-99.

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tional People's Congress adopted amendments to t

right to defense. Again, although the constitution
vision on the subject of torture, the use of tortu
prohibited in the Criminal Law and the Criminal
the precise ambit of the general constitutional prov
and be elected has been fleshed out in the Election L
on the direct election of National People's Congr
and below, promulgated by the fifth congress. N
stitutions remain the primary source and inspira
rights.
IV. CONSTITUTIONAL RIGHTS IN CHINA AND

THE INTERNATIONAL BILL OF RIGHTS
The remarkable feature about China's four constitutions since 1949 is that,
despite their changing character, they have shared an unchanging commit-
ment to civil and political rights, as well as to social, economic, and cultural
rights. Over time, some civil and political rights have been added and some
subtracted, but a feature of continuity in all of the constitutions has been
the pledge of respect for the freedoms of speech, correspondence, press,
assembly, association, procession, and demonstration, and freedom of per-
son, freedom of religious belief, the right of appeal against state functionaries,
and the autonomy of national minorities. Political rights have been guar-
anteed under the Chinese constitutions to all citizens age eighteen and over
as "the right to vote and stand for election."23 The exceptions are those
persons deprived of this right by law.
Civil rights not contained in the constitutions include those rights laid
down in the Universal Declaration and International Covenant on Civil and
Political Rights, such as freedom of residence or movement, the right to
choose one's work, freedom from forced labor, freedom from torture, and
the presumption of innocence, although there is a right of defense and of a
public trial.24 This formal guarantee of civil freedoms, while surprising, has
a number of explanations. China, like other communist countries, is a state
operating not on a common law basis but according to concepts of civil
law. According to these concepts, the constitution is directed not at the
courts but at the legislator, establishing the parameters of permissible prac-
tice. But since the constitution is not judicially actionable, the state faces
no problem of being obliged to put the rights guaranteed in the constitution
23. 1978 Constitution, art. 44, reprinted in Peking Review 21 (17 March 1978), 13.
24. Edwards, Henkin, and Nathan, note 20 above, 32. Although the Chinese constitutions
contain no prohibition on the subject of torture, it is prohibited by law. See Seymour,
note 20 above, 295-96.

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into action. Moreover, civil law "sees law

law tradition does, as rooted in the w
provisions made by it."2s
The second constraint is that every
matched by a corresponding duty, so tha
"may not infringe upon the interests
collective, or upon the lawful freedom
only is there no promise of remedies
these rights, but the rights themselve
state laws or by Party fiat. For under th
less by legal codification and more by
current policies of Party and state, and t
to resort to mediation and conciliatio
result has been that, as Henkin has p
are not in fact enjoyed. ... [R]ights pr
perceived needs of socialism, of the C
ernment."28 Or, as Xu Bing of the Leg
Academy of Social Sciences observed i
divorced from real life, so that some c
citizen still remain only on paper and
them."29
Despite this restrictive constitutional framework, it would be a mistake
to assume thatthe comparison between the provision of civil rights in Chinese
constitutions and those in international human rights instruments is merely
an exercise in empty formality. As Jerome Cohen has observed, it is one of
the major unresolved puzzles of Chinese constitutionalism to ascertain why
these freedoms have continued to be asserted in the face of reality, partic-
ularly when retention of such symbols of freedom courts either popular
concern or the risk that large numbers of people may seek to exploit that
freedom.30 in other words, as the Chinese government was to discover
25. Tay, note 15 above, 240.

26. 1982 Constitution, art. 51, reprinted in Beijing Review 25 (27 December 1982), 18.
27. A current example of the subordination of the rule of law to state policy is the provision
in Hong Kong's Basic Law that the Standing Committee of the National People's Congress
will be able to declare that any existing Hong Kong law is not in conformity with the
Basic Law or legal procedure, thereby returning it for reconsideration. See James Cotton,
"Hong Kong: The Basic Law and Political Convergence," "Globalism and Asia-Pacific
Dynamism," NIRA Research Output vol. 2, no. 2 (1989), 58. See also Tay, note 15 above,
237-52.
28. Edwards, Henkin, and Nathan, note 20 above, 33.
29. Xu Bing, "Renquan Lilun de Chansheng he Lishi Fazhan" ("The Emergence and Hist
Development of the Theory of Human Rights"), Faxue Yanjiu 3 (1989), 10. On
relationship of Chinese law to effective human rights, see Seymour, note 20 above,
97.
30. Jerome Cohen, "China's Changing Constitution," The China Quarterly, December
no. 76:832.

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through the 1980s, the token nature of these guarant

to challenge. Moreover, the significant index of re
freedoms may be sought not in the continuity of th
in their discontinuity. It is where civil rights hav
sequently restored, or introduced and then remov
identify the points at which limited civil freedoms--
rights are exercised within certain defined boun
in China. For instance, the 1975 constitution enshr
practice in introducing the right to exercise the four
out freely, airing views fully, holding great debates, a
posters.31
It will be noted that these rights, which were subsequently removed
from the 1982 constitution, appear similar to the civil rights of freedom of
speech, press, and assembly, and yet they were described in the 1975
constitution as "new forms of carrying on socialist revolution created by the
masses of the people."" in fact, the four great freedoms, along with the right
to strike, were not introduced in order to protect individual expression or
to promote material interests but to empower the masses to participate in
the political struggle of the Cultural Revolution under party leadership.33
The inclusion in the 1978 constitution of these "new" rights in the same
article which listed the nominal civil freedoms of speech, press, and assembly
was in itself unambiguous proof of the token nature of those nominal free-
doms.34 Moreover, the inclusion of the "right to strike" in both the 1975
and 1978 constitutions, but not in the 1954 or 1982 constitutions, provides
an indication of what (limited) freedoms were tolerated in the 1970s; on the
other hand, the restoration in the 1982 constitution of the 1954 provision
of "equality before the law" is an indicator of the intention of the post-Mao
leadership to establish a stricter legal framework.
In contrast, less ambiguity and fewer limitations, apart from material
ones, have characterized the guarantee of economic, social, and cultural
rights in all Chinese constitutions. Randle Edwards has observed that Chinese
constitutional guarantees of these rights incorporate every major category
of the International Covenant on Economic, Social and Cultural Rights.35
Since 1949 the legitimation of Chinese rule has been articulated chiefly in
terms of the achievement not of civil and political rights but of social and
economic goals. Economic, social, and cultural rights guaranteed under
China's constitutions include the "right and duty to work," the "right to
rest," the right to "material assistance from the state and society in old age,
31. 1975 Constitution, art. 13.

32. 1975 Constitution, art. 13, reprinted in Peking Review 18 (24 January 1975), 15.
33. Cohen, note 30 above, 833-34.

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illness or disability," the right to a system

staff, and the "duty as well as the righ
right to engage in "scientific research, l
cultural pursuits."36
The material limitations are evident
rights and the provisions in the coven
defined as contingent; apart from th
stitution, all social rights are described a
sion on the development of the econom
tutions, however, that social and econo
in that the right of access to social sec
with the right to work. Thus, the "iron
generally been regarded as China's eff
a research project of the China Economic
working directly for the State Council
China's social security system is actuall
national system covering retirement pen
social security system is largely realized b
have welfare benefits and security so lon
completely outside this welfare net. In add
benefits than state enterprises.37
This analysis exaggerates the exclus

recently were guaranteed a basic rice
limited health and education services-
its general assessment is valid. The fo
the worker is explainable in terms of th
source of value. The right to work, whic
under the constitution, has had the effe
to "the working people" of access to s
it must also be noted that the right (a
balanced by the absence of some sign
freedom to choose one's job and the lack
to engage in equal bargaining vis-A-vis t
in the International Covenant on Econo
right to work also accounts for the failu
for the right to unemployment relief
36. 1982 Constitution, arts. 42-47.

37. Huang Xiaojing and Yang Xiao, "From Iron
Social Security System," in Bruce Reynold
Choices-A Summary and Analysis of the CES
Chinese Economic System Reform Research
148.

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Universal Declaration of Human Rights. As will

this right has proved crucial to the social probl
during the decade of economic restructuring.
V. CHINA'S CONSTITUTIONS AND INFORMAL REALITY
The second step in the process of analyzing human rights in China i

compare the provisions of the state constitutions with the informal realit
in society, or to compare what society expects against what actually ex
This procedure is, of course, difficult to apply in states without bills of rig
like Australia and the United Kingdom, but possible in most states establis
since World War II, the majority of which either incorporate rights in th
constitutions or in specific bills of rights. The process is also differen
liberal democracies, where a national constitution stands as a relatively fix
standard-bearer, as a statement of universal values.
In a socialist country like China, where rights are not seen as unive
and immutable, constitutions tend, as has been observed, to be more
political programs. As Cohen has pointed out, the Chinese constitution
"a formalization of existing power configurations rather than an authe
institutional framework for adjusting relations between the political force
that compete for power in a dynamic relationship."38 But precisely for th
reason, as has been noted, socialist constitutions like China's serve as
rometers of the state's policies and values and reflect the current so
condition.
Within the assumption that there is in all countries a gap between idea
and practice, socialist constitutions can be said to exhibit two princi
relationships with empirical social reality. They may converge, in the nega
sense that the provisions of the constitution are much closer to the re
of a strictly regimented society, or in the positive sense that existing
stitutional norms are maintained and the Party and general populace
couraged to adhere to them.39 On the other hand they may diverge, in th
they provide obstacles to, or anticipate and seek to shape that reality.
broad thesis maintained here is that close convergence in either sens
symptomatic of a more stable social condition, even though that cohe
may also be a product of coercion. Wide divergence, however, is indica
of either rising social expectations or a sense of relative deprivation, b
situations being conducive to social unrest and even revolution.
38. Cohen, note 30 above, 837.

39. This is the relationship described by Cohen, note 30 above, 839.

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VI. THE CONSTITUTIONS OF 1954, 1975, 1978 AND

INFORMAL REALITY
During the Maoist period, the hierarchy of rights contained in the 195
constitution generally accorded with empirical reality. Under Mao, the so
cialist emphasis on collective social and economic rights in preference t
individual civil and political rights was most fully realized. Under this so
cioeconomic security system, Chinese citizens achieved an improved stan-
dard of living over the pre-1949 years, relatively egalitarian forms of distri-
bution, access (if limited) to health and education services even in the
collective sector of the countryside, and access to secure, if overstaffed jobs.
If the result was an equality of poverty, it was nonetheless a poverty padded
with important economic and social safeguards against destitution, starva-
tion, ill health, and ignorance.40
On the other hand, the actual limits imposed in reality on civil and
political rights, including the nominal freedoms of speech, press, assembly,
association, procession, and demonstration, were reflected in the constitu
tion's insistence on countervailing "duties." The effective self-limiting mech-
anisms within the 1954 constitution restricting the exercise of civil right
were early bolstered by separate regulations affecting freedom of speech
state secrets were defined as including "all state affairs which have not been
decided upon or ... have not yet been made public."41 A 1951 law against
counter-revolution also restricted the rights of association, assembly, and
speech, which could not be used to oppose the regime, and the right of a
public trial was undermined by the provisions of the 1957 regulations on
rehabilitation, which allowed that, "in the case of minor crimes, police might
sentence counter-revolutionaries without trial to terms of three years in
labor camp, extendable by a year."42
One area in which the 1954 constitution did not accord with reality,
however, was its declaration that "citizens of the People's Republic of Chin
are equal before the law."43 As Jerome Cohen has pointed out, that decla
40. On equality of poverty, see David S. G. Goodman, "Communism in East Asia: The
Production Imperative, Legitimacy and Reform," in Goodman, ed., Communism and
Reform in East Asia (London: Frank Cass, 1988), 4. Even in the Maoist era, the "relativity"
of this "equality" of distribution is emphasized by Deborah Davis, who points out that
"keeping social services as a government monopoly and allocating them by job status
also meant that the quality of service varied by the rank of the job not by the price or
cost of the service." See Deborah Davis, "Chinese Social Welfare: Policies and Out-
comes," The China Quarterly, September 1989, no. 119:579.
42. Ibid., 104-05, quoting Jerome Cohen, The Criminal Process in the People's Republic o
China, 1949-1963: An Introduction (Cambridge: Harvard University Press, 1968), 299-
302.
43. See 1954 Constitution, reprinted in Theodore Chen, ed., The Chinese Communist Regime:
Documents and Commentary (New York: Praeger, 1967), 75-92.

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ration appeared inconsistent with the deprivation

feudal landlords and "bureaucrat capitalists," as w
of everyday life in China.4 Those realities included t
campaigns of the early 1950s, the Three Anti and
as well as the Anti-Rightist campaign of mid-19
"blooming and contending" phase of the Hundred
Political rights also reflected the minimal defin
outlined in the 1954 constitution. In practice, loca
as ritualistic procedures where voters selected fr
nominated by a committee controlled by Party m
congress delegates elected district-level candidat
national level. Representatives were cadres and Par
reelected and seldom recalled.
If one were to interpret political rights in the broader sense of the "right
to participate in the exercise of political power" rather than in the more
technical democratic sense of the right to vote and act to influence the
choice of government leaders and policies, it could be claimed that Chinese
citizens enjoyed a degree of political rights. Mao's "mass line" in politics
meant mass political participation which was invoked in numerous political
campaigns throughout the 1949-1976 period. During these political cam-
paigns and movements, some citizens enjoyed the civil rights of freedom of
speech, press, movement, and association to a certain extent.
However, the important thing to note about these excursions into the
arena of civil and political rights in China is that they were sporadic and
contingent; they were initiated, guided, and revoked by the political leaders.
The infrequence and impermanence of these phases served to highlight the
absence of rights in normal times. Exercise of these rights by one group
usually led to the restriction of the rights of others and was punishable after
the event. Even after the Maoist era, the chief dissidents who demanded
effective civil and political rights during the Democracy Movement of 1978-
1980-Wei Jingsheng, Wang Xizhe, and Xu Wenli-are still in prison. Po-
litical campaigns aside, a further argument along these lines could be that
the large and ubiquitous Party organization, reaching out from the Party
center to branches and groups at the most local level in enterprises and
villages, ensured widespread political participation, but this participation
was neither universal nor direct. And for political participation to be defined
as a right, it must be universal.
An even closer correspondence between guaranteed rights in the con-
stitutions and empirical reality was observable in the late Maoist, early post-
Mao period of the second and third constitutions of 1975 and 1978. As

45. See, for example, Frederick C. Teiwes, Politics and Purges in China: Rectification and
the Decline of Party Norms, 1950-1965, (New York: M.E. Sharpe, 1979), 105-383.

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Cohen has put it, in the 1975 constitutio

has existed between modern China's co
sonalized Party-military dictatorship"
significantly widen the gap.46 Cohen's
declaration of equality before the law, t
closer to the reality of the denial of p
reformed landlords, rich peasants, an
deleted the 1954 constitutional guara
freedom to change their residence": al
lieve in religion they were more real
believe in religion and to propagate at
The extra rights provided in the right t
also reflected the reality of the historic
in that they confined the exercise of civ
Just as the right to strike was interpret
the masses to undermine the power and
than as an economic weapon to furthe
the four great freedoms were seen as
enemies within the Party and the bur
indicated, universal rights, but served to
sections of the people vis-a-vis the clas
of Chinese intellectuals during the Cultu
example of this inequality of access to ci
as Cohen has observed, were thus not
pression.
The 1975 and 1978 constitutions, however, were not identical. Just as
the 1975 constitution was an attempt to preserve the Cultural Revolution
environment and mores, so the 1978 constitution heralded an attempt, at a
time when Deng Xiaoping had not yet achieved supremacy, to move away
from that era. Thus the 1975 constitution, which emphasized Party suprem-
acy, was more restrictive of political and cultural rights than its 1978 suc-
cessor. In the 1975 constitution, the method of selection of People's Congress
deputies was described as "democratic consultation" rather than election,49
and, in contrast to the 1954 constitution, all cultural activity had to "serve
proletarian politics, serve the workers, peasants and soldiers, and be com-
bined with productive labor."so The 1978 constitution restored the principle
of election of deputies "after democratic consultation" and applied the
46. Cohen, note 30 above, 839. Cohen's analysis provides the basis for the discussion of the
congruence between the 1975 and 1978 constitutions and informal reality.
47. Ibid., 829-31.
48. For example, Ta-ling Lee, "Intellectuals and 'Democratic Elements': A Distrusted Un-
derclass," in Yuan-li Wu et al., note 19 above, 154-92.

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cultural policy of "let a hundred flowers bloom

expanded the people's right to supervise the bur
the 1954 constitution.52 But in all cases the differe
stitutions reflected the difference in the immediat
social environments-even if the inclusion in the 1978 constitution of the
right to strike and the four great freedoms was somewhat anachronistic.
Concluding his analysis of the 1975 and 1978 constitutions, Cohen asked
the rhetorical questions:
Can we anticipate the course of future constitutional development in the People's

Republic? Will the gap be closed by eliminating what remains of the western-
Soviet constitutional window-dressing? Or might the gap be narrowed not by
doing away with existing constitutional forms and norms but by gradually de-
veloping respect for them among the Party and the people.s3
In fact, neither development occurred. More than any previous post-

1949 constitution, the 1982 constitution combined the dual and contradic-
tory functions of a socialist constitution: the conservative function of sta-
bilizing the society and the radical function of anticipating change. And in
both respects it made a radical departure from empirical reality.54 Further-
more, although in its formal reality it did not reverse the normal Marxist
priority of social and economic rights, unlike the earlier constitutions it
proved incapable either of prevailing over or of accommodating the informal
developments in society at large.
VII. CIVIL AND POLITICAL RIGHTS: THE 1982 CONSTITUTION

AND INFORMAL REALITY
In its provision of civil and political rights, the 1982 constitution fulfill
the conservative function of underwriting social stability. This role was con
sistent with its official representation as a significant break with the mores
of the Cultural Revolution. On the other hand, it was also represented a
return to the values of the 1954 constitution. The assertion of unambiguous
control by the Deng Xiaoping leadership was reflected in the identificati
of economic construction as the main task of the new era, in the downgradi

52. Edwards, Henkin, and Nathan, note 20 above, 113-14.
54. See also Kent, note 1 above, 16-24. Divergence between form and content has also be
described by a Chinese political theorist as the chief characteristic of rights under capitalist
democracies. See Lu Lieying, Liang Zhong Minzhuzhi (Two Kinds of Democracy) (Xia
Xian Jiaotong Daxue Chubanshe, 1987), 128.

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of the role of class struggle and the r

but not usurper of the role of the state.5
The new constitution provided for
litical rights. Under Article 38, the per
inviolable, and "insult, libel, false cha
izens by any means" was prohibited. T
the law were restored, and the rights t
enjoyed without reference to class b
organic and election laws were reflec
direct election of deputies to local peopl
and township levels. Popular supervis
stressed in Articles 2, 27, 76, 77, and
national minorities listed in the 1954
larged.56
And yet, the 1982 constitution was not a liberal document. Although
for the first time the section on rights and duties of the citizen towards the
beginning of the text, in significant respects the constitution was restrictive
of civil rights. The right to strike and the "four freedoms" were dropped, as
were other fundamental rights contained in the 1978 constitution, such as
freedom of correspondence and freedom of publication. Article 1, paragraph
2 of the 1982 constitution stated that "any person is prohibited from using
any means whatsoever to undermine the socialist system." Under Article
34, citizens were able to be deprived of their political rights by law, and
the state's power to limit rights by law was continued.
The 1982 constitution also expanded on the rights of citizen appeal in
the previous constitution, but contained a new safeguard that "fabrication
or distortion of facts with the intention of libel or frame-up is prohibited."57
The powers of the people's congresses were not altered, and suggestions to
strengthen their role were resisted.58 Finally, Article 67(20) introduced a new
role for the Standing Committee of the National People's Congress: "to decide
on the enforcement of martial law throughout the country or in particular
provinces, autonomous regions or municipalities directly under the Central
Government."
An even more restrictive control over civil freedoms in the 1982 con-
stitution was exerted in the preamble with the inclusion of the ideas un-
55. These aims were outlined by Peng Zhen, the vice chairman of the constitutional revision
committee, in introducing the new constitution. See Peng Zhen, "Explanations on the
Draft of the Revised Constitution of the People's Republic of China," 23rd session of the
Fifth National People's Congress Standing Committee, 22 April 1982, Beijing Review 25
(10 May 1982): 18-26; Edwards, Henkin, and Nathan, note 20 above, 115.
56. For an excellent analysis of the 1982 constitution, see Edwards, Henkin, and Nathan,
note 20 above, 115-20.

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derlying the "four basic principles," first coined

in response to the Democracy Wall movement. Acco
no exercise of democracy could contradict the so
democratic dictatorship, Communist Party leadershi
Mao Zedong thought. These principles formed t
servative stabilizing force of the new constitution
voked to restrain subsequent moves towards the inf
and political rights.
In contrast to the restrictive nature of the 1982
in China, relative to the past, showed an enormous e
level during this period. Citizens began to enjoy i
the form of freedoms of speech, publication, as
(although the latter freedom was not constitutio
geoning of publications in all disciplines, a netwo
semi-official consulting and research organizations p
ernment, brought relatively open policy debate a
China's social and political life. Increased investm
terchange between China and the West was parall
growth in cultural, educational, and scientific int
visiting delegations, businessmen, tourists, and st
films, television programs, books, and news floo
Occasional political campaigns-the 1983 anti-spir
and the early 1987 anti-bourgeois-liberalization
tralize the effects of this official endorsement of C
culture, but they were short-lived and ultimately in
A new commitment to the rule of law added to
calls for the realization of constitutional civil and po
from collective to individual consciousness was symb
use of the term gongmin (citizen), as against the ear
to qunzhong (masses), in legal and constitutional d
parlance. A number of books on human rights w
mercially distributed, one of which itemized a b
political, social, and economic rights as being the
nese citizen.59 Through the decade, Chinese intell
to make claims on the state to honor the guaran
rights itemized in every constitution. They thus
meaning into these hitherto token guarantees.
59. Hou Meixian, ed., Zhenxi Ni de Quanli: Gongmin Falu Qu

Advice on the Legal Rights of the Citizen] (Beijing: Jingji
the same time, the legal and constitutional restraints on th
socialist system were acknowledged, and the inseparabilit
socialist "citizens" emphasized, 11-12. See also Gongmin S
book (Beijing: Huayi Chubanshe, 1988); for rights, 60-145

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Between 1979 and 1980 a series of laws were enacted which institu-
tionalized the new commitment to the rule of law: the Arrest and Detention
Act, the Criminal Law, Criminal Procedure Law, the Organic Law for the
Courts, the Organic Law for the Procuratorate and, in 1982, the Provisional
Civil Procedure Law. Cohen has subsequently referred to the "remarkable
decade of progress towards creating a credible rule of law" in the period
immediately preceding June 1989.60
Before June 1989, judicial review of the legality of administrators' de-
cisions was being considered, and the National People's Congress was even
on the verge of abolishing the category of "counter-revolution" as a crime.61
On the other hand, in 1982-1983 the National People's Congress adopted
amendments to the Criminal Law which made a wide range of new offenses
punishable by death. It also made possible summary executions and limited
the right to defense.62 Increasing petty criminal activities, a byproduct of
social and economic dislocation, produced stiffer criminal penalties, and
between 1983 and 1988 Amnesty International documented 1,500 execu-
tions and also unofficial estimates of 30,000 executions.63
In Amnesty's view, the appeal procedure and the trial itself continued
to be largely formalities, death sentences were excessive and often inap-
propriate, and arbitrary arrest and torture continued to be widespread.64 This
failure of the legal system to uphold and enforce the informal condition of
civil rights led many to describe the new legal system as rule by law rather
than of law.65 In this sense, the conservative role of the legal system in
enforcing orthodoxy was similar to the restrictive role of the constitution.
Nevertheless, the greater informal access to civil rights in an overall
sense in this period, most strongly reflected in the 1978-1980 Democracy
Movement, was later demonstrated in the 1986 and 1989 student demon-
strations. These expressions of dissatisfaction with the rate of change can
also be seen as symptoms of an increased popular confidence in the reality
and prospect of improved civil rights. The exercise of these rights of ex-
pression demonstrated the leeway which existed between the essentially
conservative function of the formal legal system in enforcing stability and
60. Jerome Cohen, "Law and Leadership in China," Far Eastern Economic Review 145 (13
July 1989): 23.
61. Ibid.
62. See Amnesty International, "People's Republic of China: The Death Penalty in China,"
January 1989, ASA 17/01/89, 3-13; Franz Michael, "Law: A Tool of Power," in Yuan-li
Wu et al., note 19 above, 50-52.
63. Amnesty International, note 62 above, 3-4.
64. Ibid., 5, 7.
65. On the failure of the legal system to uphold civil rights, see Seymour, note 19 above,
especially 286-87. See also Amnesty International, China: Violations of Human Rights-
Prisoners of Conscience and the Death Penalty in the People's Republic of China (London:
Amnesty International, 1984), 83-106.

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the more liberal unofficial social and political con

qualified expressions of dissent.
A substantial degree of liberalization was also e
litical life in the eighties. The 1979 Electoral Law f
Congress and the Local People's Congresses of All L
election of people's congresses not only at the to
county level.66 Although the 1982 National People
eral amendments to the election law to limit the exercise of "extreme de-
mocracy" which had occurred in the 1980 elections, the process of gradual
liberalization at an informal level was undeniable. Thus, at an enlarged
Politburo meeting in August 1980, Deng Xiaoping suggested the separation
of the power of Party and state, the establishment of an independent judiciary,
the introduction of measures enabling public criticism and the recall of
corrupt leaders, and limited elections for leaders in grassroots organiza-
tions.67 Political reform was institutionalized with the establishment in 1986
of political reform research groups (zhengzhi gaige yanjiu xiaozu) at Central
Committee and provincial and city Party committee levels.
The 1980 policy directives also provided the basis for Acting General
Party Secretary Zhao Ziyang's later initiatives expanding civil and political
rights at the 13th Party Congress in October 1987. The reform agenda in-
cluded the separation of the functions of Party and state, reform of the cadre
system and governmental structures, increased popular participation in pol-
itics, and the strengthening of the socialist legal system.68
In his opening speech to the congress, Zhao said that the government
should "guarantee the citizens' rights and freedoms as stipulated in the
constitution" and enact laws governing the press and publications, associ-
ation and assembly, and freedom of belief.69 Discussion and drafting of these
proposed laws were reportedly well under way by the end of 1988.70 Fur-
thermore, in his speech Zhao announced that it was necessary to "respect
the will of the voters and ensure that they have more options in elections."71
In the next few years the need for "political supervision" became a
66. Nathan, Chinese Democracy, (New York: Alfred A. Knopf, 1985), 195-96.
67. Deng Xiaoping, "Dang he Guojia Lingdao di Gaige" ("The Reform of Party and State
Leadership"), in Deng Xiaoping Xuanji (The Selected Works of Deng Xiaoping) (Beijing:
Beijing Renmin Chubanshe 1983), 134.
68. Zhao Ziyang, "Advance along the Road of Socialism with Chinese Characteristics: Report
delivered to the 13th National Congress of the CCP," Beijing Review 30 (9 November
1987): I-XXVII. For assessments of the implementation of these policies, see John P. Burns,
"China's Governance: Political Reform in a Turbulent Environment," The China Quarterly
(September 1989) no. 119:481-518; You Ji, "Politics of China's Post-Mao Reforms: From
the CCP's 13th Party Congress to the Dawn of Beijing Students' Demonstrations" (M.A.
thesis, Australian National University, August 1989).
69. Zhao Ziyang, note 68 above, xx.
70. Senate Committee on Foreign Relations and House Committee on Foreign Affairs, China:
Country Reports on Human Rights Practices for 1988, 101st Cong., 1st sess., 1989, 771.
71. Zhao Ziyang, note 68 above, xx.

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popular catchword within the Chinese

leaders became an important source o
litical supervision and numerous soci
opinion.72 Within the National People'
allow limited political liberalization was
held in the spring of 1988. The Chin
and democratic" congress since 1954,
undertakings."'7 A majority of the deleg
local-level congresses with more candida
and debated a wide range of crucial iss
and inequities of economic developme
were also allowed to cover major segm
session of the seventh session in April 1
for Shenzhen was passed by a vote of
abstentions.75 And it was reported t
Premier Li Peng's report on governme
deputies.76
Nevertheless, in contrast to the expan
was more limited, precisely because of t
reform to achieve it. The more lively
pecially of the congress' Standing Co
manifestation of inner Party struggle" ra
ening of popular participation.77 The
required a complex restructuring proces
interests, especially in local Party com
reaucracy, reflected in the newly trimm
problem because of the built-in moment
The decentralization of political cont
that "the simple relations between sta
72. For instance, the Beijing Review cites 14 sur

Review 30 (29 June 1987), 22. Surveys incl
the Institute of Sociology, CASS, and the Sta
and China Daily, 11 February 1989; "1987 Surv
in China," Inside China Mainland 11 (May 19
in Reynolds, note 37 above, 147-87. See als
Zhongguo Zhengzhi Wenhua: Minzhu Zhengz
Political Culture: Social Psychology and the Bi
Yunnan Renmin Chubanshe, 1989).
73. Lowell Dittmer, "China in 1988: The Conti
Survey 29 (January 1989), 16.
74. Ibid.
75. Beijing Review 32 (17 April 1989), 5.
76. China Daily, 7 April 1989.
77. John Burns, note 68 above, 510-11. See also Michael D. Swaine, "China Faces the 1990s:
A System in Crisis," Problems of Communism 39 (May-June 1990), 20-27.
78. Burns, note 68 above, 511-16.

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obedience to the central authorities [were] supe

unregulated bureaucratic process."79 Finally, alt
to regularize procedures among the top leadershi
the events of April-June 1989 revealed how limi
Notwithstanding the inadequacies in civil and po
ular exercise of civil and political rights in this
provisions of the 1982 constitution, which represen
orthodox thought and social stability. Not only was
tion of civil and political life evident on the d
reflected in the formal international arena, whe
United Nations in respect of human rights, its m
Rights Commission, ratification of seven internatio
to human rights, and its own statements on hu
closer than ever before to an acceptance of the nee
political rights.80 This formal convergence of n
norms was stressed as recently as April 1990, wh
tive stated before the UN Committee Against Tortu
when China acceded to any convention, it became b

into force. China then fulfilled all its obligations,
draft special laws to ensure conformity. If an intern
consistent with domestic law, the latter was brought
Where subtle differences remained, international ins
over domestic law.81
Although an expression of the formal relationsh

international human rights instruments, the exten
has been honored in recent Chinese practice m
reliable statement on the convergence of nationa
was contained in a study of human rights by the C
Research Center of Beijing University. Published by
Qiushi (Seeking Truth) on the eve of the 1989 D
encapsulated both the changes in the international
which had occurred over the previous decades, an
view of human rights. It pointed out that the deve
from a concept mainly serving the capitalist clas
"common interests of all mankind" meant that "
world, whatever its ideology, could publicly opp
rights"; moreover, the nature of China's activit
demonstrated that "the Chinese government was be
79. You Ji, note 68 above, 208.

80. See Kent, note I above, 57-63; Cohen, note 18 above
81. U.N. Committee against Torture, Fourth Session. Summ
Geneva, 27 April 1990, CAT/C/SR.51 (4 May 1990), 2.

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and more responsibilities and duties

human rights."82
VIII. SOCIAL AND ECONOMIC RIGHTS: THE 1982 CONSTITUTION

AND INFORMAL REALITY
The social and economic rights guaranteed in the 1982 constitution also
diverged from reality in a number of ways. While some provisions we
restrictive, others guaranteed rights that no longer existed in reality or con
tained programmatic rights that were not currently realizable. This distance
from reality was due chiefly to the rapid structural changes in the economy
which were not paralleled by changes in social security legislation and
regulations or by the transformation of the social security and social welfar
infrastructure. Since 1978, the change from a centrally planned social
economy to a "socialist commodity" or market economy had brought de
collectivization of agriculture, the separation of ownership and management
within factories, some market-based pricing policies, and a freer labor mar-
ket, as well as a new emphasis on the importance of "expertise" ov
"redness" and of competition over egalitarianism.
The result was that the right to work, although still formally guaranteed
in the 1982 constitution, was progressively undermined by the market mech
anism; although the rice bowl was not smashed, it became cracked b
redundancy, unemployment, large wage differentials, and inflation. The in-
troduction of contract labor into state enterprises implied official sancti
for the informal right to choose one's employment (and for the conver
right to be unemployed), as well as for the civil right of movement (to find
a job), neither of which were rights granted under China's constitutions. And
yet, the economic right to strike, a right guaranteed workers in most advance
market economies, was eliminated from the 1982 constitution. Despite th
anachronistic restriction, the right to strike was exercised as never befo
during the 1980s.83
But the most glaring inconsistency between the 1982 constitution an
informal reality was the programmatic character of Article 45, which su
stantially overstated the possible scope of welfare and social security services
It stated that "citizens of the People's Republic of China have the right
82. See Wang Delu and Jiang Shihe, note 18 above, 4, 5.

83. For example, a series of bus strikes occurred in Beijing during 1986 which resulted i
wage rises. In the first half of 1988 forty-nine strikes were reported officially, and in 1989
there were widespread reports of job action in support of pro-democracy demonstrations
See Senate Committee on Foreign Relations and House Committee on Foreign Affairs
China: Country Reports on Human Rights Practices for 1989, 101st Cong., 2d sess., 1990
822. See also Benedict Stavis, "Contradictions in Communist Reform: China before 4
June 1989," Political Science Quarterly 105 (1990): 45.

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material assistance from the state and society w

disabled." It also undertook to "develop the soci
and medical and health services that are required
this right." The significance of this article is that, f
"working people" used in the three preceding con
"citizens," it signalled the end of the close nexus
the workplace, which had been an integral featu
implied acceptance of the existence of unemploy
Second, the formal universalization of social ri
number of negative developments in the area of
welfare, which during the 1980s led to a severe
economic rights and widened the gap between the
and the reality of those provisions. These were: (
social welfare;84 (2) the increase of the rural-urb
social services;85 (3) the devolution of responsibil
social security; and (4) the lack of a comprehensive u
system.
Third, the formal universalization of rights was not accompanied by the
development of new structures to institutionalize them, despite the fact that
the state's undertaking to "expand" social services indicated the acceptance
of some legal obligation to progressively implement the new guarantees.
Deborah Davis has recently pointed out that in the shift from a planned
socialist economy towards a market economy, one, "when the leadership
changes to profit maximization criteria for allocating state resources, non-
profit institutions such as schools and hospitals are at a distinct disadvantage"
because of their non-competitive quality.86 The results of this development
in China appear to have been both a reduction of services and an attempt
to make these services commercially viable, thereby increasing the costs. A
study by Anita Chan of China's social conditions in 1988 reveals that by
the late 1980s, state and local funding for hospitals and medical services
had dwindled. The 90 percent of China's population outside the state-
employed sector lacking free medical services faced huge medical bills,
while the privileges of the remaining 10 percent were being eroded. In
housing, the need to raise funds to ease the housing shortage prompted
measures such as rent increases that favored the wealthy and adversely
affected the interests of the average urban family.87
In education, reform policies were shifting the financial onus onto the
84. This concept was first used in Deborah Davis, note 40 above, 596.
85. Ibid.; Jeffrey R. Taylor, "Rural Employment Trends and the Legacy of Surplus Labor, 1978-
86," The China Quarterly, December 1988, no. 116:753-58.
86. Davis, note 40 above, 579.
87. Anita Chan, "The Challenge to the Social Fabric," The Pacific Review 2, no.2 (1989):
127-28.

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collectives and private enterprises; poo

nessing primary school closures and d
studies have shown that education in
throughout the country; there was a rea
enrolled in school, a decrease in the pe
level of education below university an
Moreover, the traditional urban-rural
services was widened, partly as a resul
financial responsibility for rural educat
In the area of health care, the dimin
dramatic.90 The urban-rural gap, how
admitted to be a shortage of medical s
side. As of June 1989, barefoot doctors
care, and the collectively funded medi
health services now depended on mon
pulsory basis by villagers; in the case
was often not dependable.
Thus in the 1970s, 85 percent of ru
insurance, but by 1987 the ratio had f
titioners were becoming the most comm
Hospital costs for the peasants had in
medicine. Even around big cities like
been an exodus back to the city of 70 pe
assigned to work in the capital's subu
years. In Beijing itself, according to a M
of Public Health, only 10 to 20 perce
being underwritten by the government;
generated. The retail price of medicin
In response to these pressures, the hos
medical services at higher prices. Th
terms of the numbers of beds and do
per 1,000 population) meant that in r
fatalities consisted of patients who had
practices had been introduced to relieve
enterprises, the new contract workers
ployees employed since October 19
contributions along with the enterprise
88. Davis, note 40 above, 581-82. See also Ke

90. Ibid., 586-90.
91. Ibid., 587.
92. China Daily, 5 May 1989.
93. Davis, note 40 above, 588-89.

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Despite the deterioration in the provision of social

threat to the Chinese citizens' social and economic
June 1989 lay in the inadequacy of the social secur
problems of unemployment and retirement. Estim
1990 retirees would constitute 14 percent of the c
pensions would reach 20 billion yuan a year;94 by
expected that as many as 40 million workers would
totalling 40 billion yuan.9s As of 1987, 19.6 milli
23.8 billion yuan.96 Pensions for former employ
units in the cities, as of June 1989, were partly b
butions. Efforts to introduce rural pensions for t
employees had faltered."
The 1982 constitution may be seen to have been ov
of social welfare and retirement benefits to all "c
made no provision at all in regard to relief for un
potentially explosive issue in China today. China's
from 2 percent in 1988 to an estimated 3.5 percent
1988 20 million employees, or 20 percent of the
were estimated to be redundant. Nevertheless, in M
of the State Commission for Restructuring the Econo
the lack of a sound labor market and unemploym
only 10 percent of redundant employees had actu
addition, however, were those declared redundant
some 6 million young people entering the labor fo
rural unemployed.99
Statistics compiled in 1989 suggest that rural migr
were among the 50 million Chinese "on the move
program and subject to no one's jurisdiction--one
people.100 In March 1989 it was estimated that, sin
tem" had been adopted and land had begun to be
180 million farm laborers had become redundant and another 200 million
would probably find themselves jobless in the coming decade.10' In the same
month Jingji Ribao (Economic Daily) estimated that China would have 240

95. Reynolds, note 37 above, 148-49.
97. Ibid.
98. Ellen Salem, "Runaway Economy," Far Eastern Economic Review (1 June 1989): 16.
100. People's Daily, 26 February 1989, reprinted in British Broadcasting Corp., Summary of
World Broadcasts SWB/EE/0398/B2/1 (2 March 1989). See also SWB/EE/0518/B2/6 (26
July 1989).
101. Xinhua, 2 March 1989, reprinted in British Broadcasting Corp., Summary of World Broad-
casts, FE/0402/B2/3, 7 March 1989. See also Jingji Ribao, 2 March 1989, reprinted in
ibid.

130.56.64.101 on Tue, 25 Jan 2022 01:08:19 UTC
million to 260 million surplus laborer

the rural areas.102
Towards this problem of real and inc
ment had adopted a variety of soluti
1986, an unemployment insurance sy
staff in state-owned enterprises and con
zations. Those who had worked over five
of their monthly standard salary for twe
year; those who had worked less quali
only. Efforts were made to retrain redun
Redundant workers in nonstate enterpri
erage or superannuation.103
For those outside the state system, a n
been devised, reflecting a variety of p
of finding or creating one's own employ
labor markets set up throughout China af
was seen as the first priority. For surplu
was discouraged; the rural unemploye
construction work and enterprises, in
villages and towns, although millions
cities.'04
Failing employment, the neotraditio
the Minister for Civil Affairs, Cui Naifu,
of the family remains strong among the
shift insurance functions from the fam
porting old people should be shouldere
was reinforced by the new obligation o
"Parents have the duty to rear and educa
who have come of age have the duty to s
The family role in social security was pr
but to support the unemployed yout
pounded poverty.
The long term and most important sol
tural change that would reflect the tran
a "reformed" command economy with m
enth Five-Year Plan called for research
102. British Braodcasting Corp., Summary of W

1989).
103. See Zhang Zeyu, "Enterprises Optimise L
December 1988): 20.
104. Zhao Dongwan (Minister of Labor and Pers
lished in Zhongguo Nianjian [China Yearbook

130.56.64.101 on Tue, 25 Jan 2022 01:08:19 UTC
implementation of, a social security system for in

workers, although any national insurance system c
capacities. It also called for the devolution of total
social security to a system combining the resources o
and the individual.1'7 Within the economic resear
were made to "change the ineffective insurance syste
consumption, and establish social security funds."
was suggested that employment be separated from w
thus severing the traditional nexus between emp
security system. The proposed replacement of em
unemployment compensation was seen as "a breakt
of the whole employment system."'09 But as of June
had not occurred.
In early 1989, Liu Guoguang, vice president of the Chinese Academy
of Social Sciences, pinpointed the dilemma underlying these different so-
lutions:
For several reasons China has proceeded with economic reform in a piecemeal
fashion, so at present the old and new systems co-exist alongside each other.
... However, this blending of two systems has undoubtedly generated a series
of thorny problems . . . with neither the old mandatory system nor the new
market system effectively dominating the distribution of resources, the defects
of both systems have been magnified.110
Thus, in the decade before June 1989, China was caught between two
systems, rejecting the nexus established under the command economy be-
tween social security and guaranteed employment, but not yet having erected
the safety net that protected citizens from the "fall-out" factor in the market
economy.
Added to these structural problems in 1988-1989 were short-term social
and economic problems. In 1988, the sharp price rises, officially estimated
at 18.5 percent, but by other sources as fluctuating between 20 percent and
30 percent, had effectively undermined the improved living standards which,
until 1987, had served in China to cushion and disguise the slow erosion
of social and economic rights."' As of 1987, the 10 to 11 percent GNP
increase in real terms over the previous three years had far outweighed a
7.3 percent inflation rate. The trickle-down effect had indeed resulted in an
107. "Proposal of the CCP Central Committee on the Implementation of the Seventh Five Year
Plan," published in Zhongguo Nianjian (1986), 91.
108. Huang Xiaojing and Yang Xiao, note 37 above, 149.
109. Ibid., 154, 159.
110. Liu Guoguang, "A Sweet and Sour Decade," Beijing Review 32 (2 January 1989): 21.
111. State Statistical Bureau, "Changes in the Life-style of Urban Residents," Beijing Review
31 (14 November 1988): 26-7; "Improved Living Standards for Farmers," Beijing Review
31 (21-27 November 1988), 25.

130.56.64.101 on Tue, 25 Jan 2022 01:08:19 UTC
improved general standard of living, est

as an average net income per capita ga
133.6 renminbi to 462.6 renminbi) ov
for price increases, 85.7 percent bette
period.12
The high inflation rate in 1988, however, had the effect of transforming
the 22.2 percent increase in nominal per capita income over the previous
year to an actual rate of increase in real income of 1.2 percent. More
significantly, it led inevitably to a redistribution of income, so that a sampling
survey in thirteen cities revealed that the income of 34.9 percent of all
families had actually decreased solely because of price rises.13
In this way, the fall in real living standards served to expose the defects
of a dual economic system in which the old machinery of socioeconomic
security had yet to be replaced by coherent mechanisms reflecting the new
circumstances. More importantly, it served to highlight the yawning gap that
existed between the social and economic rights guaranteed under the 1982
constitution and those rights which could be exercised in reality.
IX. CONCLUSION
From this comparative approach to the analysis of China's human ri

before June 1989, two main conclusions may be drawn. First, the relation
between the International Bill of Rights and formal constitutional rights i
China in the forty year period since 1949 was a dynamic one, shifting wit
the domestic tides of political change. The nominal civil rights contai
in all the constitutions which conformed with the international provis
had been cancelled out by constitutionally prescribed duties, by other
of legislation, and by Party fiat. But some civil rights, such as the righ
strike and the four great freedoms, had been sporadically guaranteed
partially invoked. On the other hand, some rights contained in the In
national Bill of Rights which were not guaranteed in any of China's co
tutions were exercised in fact within the decade before June 1989. Th
included limited freedom of residence and movement and the right to cho
one's work. Freedom from forced labor, freedom from torture, and the p
sumption of innocence, on the other hand, were neither constitution
guaranteed nor, despite the legal prohibition of torture, exercised in pract
In the area of economic, social, and cultural rights, the distance betwee
the international standards laid down in the International Bill of Rights an
112. Ibid.
113. State Statistical Bureau, "China's Economy in 1988," reprinted in British Broadcasting
Corp., Summary of World Broadcasts SWB/FE/0401/C1/5-6 (6 March 1989). See also
Stavis, note 83 above.

130.56.64.101 on Tue, 25 Jan 2022 01:08:19 UTC
those rights guaranteed in Chinese constitutions was

until the 1982 constitution many of these rights
confined to "working people." Moreover, precisely
of the right to work, Chinese constitutions failed to
unemployment relief, as required by Article 25(1)
ration of Human Rights.114 Even when Article 49
expanded the right to "material assistance from th
age, illness or disability" was expanded from "workin
the welfare infrastructure to support this extension
The second conclusion is that over time the rela
rights guaranteed under China's constitutions and
was marked both by congruence and extreme dive
rights guaranteed to Chinese citizens under their
reasonably consistent with the actual exercise of t
cepting the token repetition of the standard civil rig
that the provisions of the constitution were close to
controlled society. The 1982 constitution, however
diverged sharply from informal reality.
First, in terms of civil and political rights, as a res
repudiation of the 1978-1980 Democracy Movem
curbed the expression of the qualified and circum
thought, speech, assembly, and association allowed
constitutions by eliminating the four great freedoms
replacing them with the "four basic principles," th
racy could contradict the socialist road, the people's d
Communist Party leadership, and Marxist-Leninist
also dropped the freedom to strike. In its formal realit
a striking contrast with later developments in Chi
these freedoms were exercised to a hitherto unpre
Some rights not constitutionally guaranteed, such a
of movement and choice of job, were also exercised in
to civil rights, political rights showed less diverge
practice, both because political rights in the 1982
what expanded and because their exercise in realit
cumscribed.
On the other hand, it has been shown that, with respect to social and
economic rights, the 1982 constitution diverged from reality not only in a
restrictive sense but also in anachronistic and programmatic ways. One
114. Universal Declaration of Human Rights, note 3 above, art. 25(1): "Everyone has the right
to a standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social services, and
the right to security in the event of unemployment, sickness, disability, widowhood, old
age or other lack of livelihood in circumstances beyond his control."

130.56.64.101 on Tue, 25 Jan 2022 01:08:19 UTC
important area of divergence was its

social rights. The hidden agenda of Ar
welfare and social security were exte
"citizens" of China, was the implicit
employment and of the consequent n
landing from the fall-out of the market
mous change in social philosophy.
It could be objected that this extens
citizens simply mirrored the empiric
converged with informal reality, rath
rights, unlike the social and economic
were never incorporated into institution
grammatic goals to be achieved when
implementation. At the same time, the i
of unemployment was not accompanied
to guarantee Chinese citizens security
reason for these crucial omissions was a
a lack of decisive planning, and, above al
a crippling burden.
Thus, the formal rights guaranteed
constitution were substantially out of st
economic rights actually exercised in pos
political rights, formal provisions lagg
of social and economic rights, the forma
in some cases and lagged behind it in
stitution fail to mesh with reality, but
and economic rights, which it formal
overturned by events.
By June 1989, China was a country no
formally expanding and giving legislat
rights already being exercised in socie
the institutional base of the social system
constitutional guarantees, as well as a n
of unemployment relief which refle
stances. The tensions created by these
and reality spilled out in the April-J
Democracy Movement was the outcome o
in the arena of civil and political righ
deprivation and rising expectations in th
It provided conclusive evidence that t
prepared to go on waiting for rights.

130.56.64.101 on Tue, 25 Jan 2022 01:08:19 UTC

Waiting For Rights China's Human Rights and China's Constitutions, 1949-1989

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Waiting For Rights China's Human Rights and China's Constitutions, 1949-1989

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Waiting for Rights: China's Human Rights and China's Constitutions, 1949-1989

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