The Difficult Road for Rights Advocacy An Unpredictable Future for the Development of the Rule of Law in China

• Author: Xiaoping Chen
• Position: S.J.D. candidate, University of Wisconsin Law School, editor of the China Law Digest, www.chinalawdigest.com.
• Pages: 221-253

Page 221

Xiaoping Chen: Many thanks to Ms. Nancy Hearst, librarian of the Fairbank Center Library at Harvard University, and to Helen Yu, J.D., University of Iowa College of Law, for their valuable advice, suggestions, and English editing. Many of the sources cited in this Article are available only in Chinese. Unless otherwise noted, all translations are the Author's.

"Rights advocacy" has emerged as a popular topic in China's public discourse over the past several years. Ordinary people, intellectuals, and even public officials have participated in discussions of rights advocacy. There were 1227 academic articles on the subject published between Page 222 1994 and August 2005.¹ Pu Zhiqiang, a well-known lawyer in China, noted at a presentation at Flushing Public Library in New York on May 1, 2005, that the term "rights advocacy was used with high frequency in China starting from 2002 and 2003."² The heyday of rights advocacy was 2003; one Chinese scholar has described 2003 as "The Year of Rights Advocacy" and "The First Year of New Human Rights" in China.³ The rise of the rights advocacy movement coincides with China's struggle to develop the rule of law.

This Article argues that despite initial enthusiasm for the rights advocacy movement, the movement may actually have a negative effect on the development of the rule of law in China-what this article calls a law-discrediting tendency. Only when rights advocacy succeeds in challenging the legitimacy or constitutionality of concrete laws will the movement further the development of the rule of law in China. The first section of this Article addresses the reasons for the rise of China's rights advocacy movement. The second section describes the revision to China's Petitioning Regulation and how Chinese lawyers are persecuted for their involvement in the rights advocacy movement. The third section explains why the rights advocacy movement may produce law-discrediting results. The final section reviews current discussions on the politicization of rights advocacy and suggests some tentative next steps.

I Reasons for the Rise of the Rights Advocacy Movement

A Continuing Economic Growth and Large-scale Human Rights Violations

Over roughly the past twenty years, "1978 to 2003, China's economic growth has averaged about 8.1 percent per annum."⁴ Although China has become more prosperous, large-scale human rights violations Page 223 continue. Although economic development has not resulted in political reform, there is a close relationship between development and the rise of the rights advocacy movement.

In rural China, land issues are the focus of the movement, and in urban areas, housing relocations are a central issue. Both of these problems are closely related to economic development. Because the central government uses the gross national product (GNP) as a key standard to evaluate the performance of local cadres,⁵ local governments, in both rural and urban areas, ruthlessly seize land resources to promote development. Many local governments form alliances with real-estate developers or businessmen to appropriate peasant land or to force urban dwellers to relocate. ⁶ A hotline run by China's central news agency received 62,444 letters of complaint between January and June 2004 regarding land disputes, comprising nearly one-quarter (24.5 percent) of all complaints. ⁷ According to statistics from the Ministry of Land Resources, between 1999 and 2005 there were more than 1 million land Page 224 violations, involving more than 5 million mu⁸ of land.⁹ As a result, many peasants sought redress by a variety of means.¹⁰ A report published by the Geneva-based Centre on Housing Rights and Evictions (COHRE) points out that More than forty million Chinese farmers lost their land and livelihoods in the past twenty years. At least 1.25 million households were demolished and nearly 3.7 million people have been evicted and relocated throughout China in the past decade. The lack of legal remedies to these evictions, inadequate compensation and resettlement options provided to those evicted, the use of extreme force in carrying out evictions, and police brutality toward those protesting forced evictions testify to the Chinese Government's ruthless contempt for housing rights.¹¹

B Dual Transitions of Official Ideological Discourse and Political Leadership

A Chinese scholar has noted that although both officials and non- officials use the term "rights advocacy," neither of them regard the term as politically sensitive.¹² This can be explained by the fact that there is a certain consensus between the authorities and the rights advocates that has promoted the rise of the movement.

"The rule of law" and "human rights" were incorporated into China's Constitution in 1999 and 2003 respectively. ¹³ Subsequently, the Page 225 traditional governing ideology gradually lost its attraction in public discourse, indicative of a process of transition in the governing ideology.

Human rights have filtered into Chinese public discourse.¹⁴ Generally, the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party, held at the end of 1978, is regarded as a turning point in the history of contemporary China. Since then, China has pursued a policy of reform and opening to the outside world, and major efforts have been made to reform the economic, political, and legal systems. However, rule by-rather than rule of-law, continues to be a dominant official discourse. A scholar in Taiwan maintains that official acceptance of the rule of law represents a "further transition from rule by man to rule of law."¹⁵

Accompanying this transition, many new laws, especially public laws aimed at limiting government action and protecting property rights and individual freedoms, were adopted. Among others, these include Xingzheng susong fa (the Administrative Litigation Law); ¹⁶ Guojia peichang fa (the State Compensation Law); ¹⁷ the Xingzheng chufa fa Page 226 (Administrative Penalty Law); ¹⁸ Xingzheng Fuyi Fa (the Administrative Reconsideration Law);¹⁹ Lifa fa (the Legislation Law);²⁰ Xingzheng xuke fa (the Administrative Licensing Law); ²¹ Xingzheng jiandu fa (the Administrative Supervision Law); ²² Xingzheng fagui, difang xing fagui, zizhi tiaoli he danxing tiaoli, jingji tequ fagui beian shencha gongzuo chengxu (the Working Procedures for Filing and Reviewing Administrative Rules and Regulations, Local Regulations, Autonomous Regulations and Specific Regulations, and Special Economic Zone Regulations); and Sifa jieshi beian shencha gongzuo chengxu (the Working Procedures for Filing and Reviewing Judicial Interpretations).²³ All of these laws provide an institutional foundation for the rights advocacy movement. Without these laws, rights advocates would have no legal basis with which to fight for their rights and interests.

For example, in the Sun Zhigang case,²⁴ rights advocates used the Legislation Law to challenge the legitimacy of Chengshi liulan qitao Page 227 renyuan shourong qiansong banfa (the Measures for Internment and Deportation of Urban Vagrants and Beggars)²⁵ and succeeded in bringing about the abolition of the sheltering system on June 20, 2003. The Measures for Internment and Deportation of Urban Vagrants and Beggars was the legal basis for shourong shencha, China's notorious sheltering system that empowered the government with arbitrary power to restrain personal freedoms.²⁶ Rights advocates argued that according to the provisions of Article 9 of the Administrative Penalty Law and Articles 8 and 9 of the Legislation Law,²⁷ the Measures for Internment and Deportation of Urban Vagrants and Beggars as an administrative law had no authority to restrain personal freedoms. ²⁸ This argument provided a strong legal basis for the State Council's abolition of the sheltering system.

After Hu Jintao became General Secretary of the Chinese Communist Party in 2002,²⁹ he attempted to replace the "Three Represents"³⁰ with Page 228 new governing ideology. He began by highlighting the authority of the Constitution. In his first public appearance after taking office, at a ceremony to commemorate the twentieth anniversary of the promulgation of the Constitution of the People's Republic of China, Hu devoted most of his speech to upholding the supremacy of the Constitution.³¹ The first group activity he organized for the new Politburo members was a study of the Constitution on December 26, 2002. ³² Such actions gave the impression that Hu's leadership represented a fresh start,³³ departing from the focus of his predecessor, Jiang Zemin, on the so-called theory of the "Three Represents." On other occasions in the following year, Hu continued to stress the supremacy of the Constitution.³⁴ In the wake of Page 229 the Sun Zhigang case and public appeals, the State Council led by Premier Wen Jiabao immediately abolished the Measures for Internment and Deportation of Urban Vagrants and Beggars, replacing them with the Measures for the Administration of Relief for Vagrants and Beggars Without Assured Living Sources in Cities. ³⁵ Under the social relief mechanisms this new regulation established, vagrants can receive help from the government rather than being constrained in their...