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China's rule of law in theory, not practice
By Fong Tak-ho
"The rule of the constitution" is one of the political ideals that
reform-leaning Chinese President Hu Jintao has been chanting vigorously ever
since he acceded to the throne in early 2003. Pursuant to Clause 37 of the
country's amended constitution, "A citizen of the People's Republic of China is
entitled to personal freedom which is protected against infringement." However,
Beijing seems only to be paying lip service to the constitution when it comes
to the all too typical case of Zhao Ziyang, a democratic leader who had been
held under 15 years' house arrest without trial before he died of respiratory
and cardiovascular disease on Monday.
Political analysts predict that Zhao's demise will not mean political
turbulence because the political and social environment has changed
considerably since the Tiananmen Square killings of June 1989. The ruling class
in Zhongnanhai, which still have a bitter taste to the June 4 incident in their
mouths, can breathe a sigh of relief.
Though Zhao was officially condemned by the Chinese government for his sympathy
with the peaceful student demonstrators, Beijing's official media announced
Zhao's death almost immediately, but briefly, a seeming deviation from its
consistent ban on reports about this party veteran for more than one decade. In
an unusual move, the Ministry of Foreign Affairs one week before had answered
the inquiries from Hong Kong media on Zhao's health.
Speculation is rife that Beijing was well prepared for Zhao's death and has
mobilized some crisis management techniques, something unusual for Chinese
authorities. One should never take Beijing's premonition as a surprise, given
that the passing of another former party secretary general Hu Yaobang 15 years
ago incited an unprecedented pro-democracy movement that swept the country.
The current talk of rule of law comes too late for Zhao. The popular President
Hu, who is widely regarded as a moderate reformer, seems to be unswervingly
pleading for "the rule of law" and "the rule of the constitution".
"Unfalteringly enforcing the rule of law is a vital guarantee of the country's
stability and prosperity. The rule of law does not only ensure that people are
their own masters, but also ensures the governing role of the Chinese Communist
Party (CCP). A complete and organic system of laws is prerequisite to the rule
of law, which is based on a better law awareness among the society," the
president told the National People's Congress (NPC), or the parliament, last
September.
Meanwhile, Hu underscored that "the rule of the constitution has priority in
the rule of law, and to govern the country according to law means governing the
country according to the constitution in the first place ... The constitution
and the law reflect the consistency between the public will and the party
tenets," he asserted.
Under overwhelming pressure from home and abroad, as well as at the prodding of
the Hu administration, China has finally written human rights protection into
its national constitution. In late 2003, the NPC Standing Committee, which
represents the NPC when it is not in session, unanimously passed an amendment
to the constitution. The amendment bill, finally passed on March 5, 2004,
during the second session of the 10th NPC assembly, modified Clause 33 of the
constitution with the words: "The government respects and protects human
rights."
Further, Clause 37 prescribes, "A citizen of the People's Republic of China is
entitled to personal freedom which is protected against infringement; any
citizen is not subject to arrest unless it is authorized by the People's
Procuratorate or People's Court and executed by the police; illicit custody and
deprivation or limitation of civil freedom in other forms are forbidden;
illegal body frisking is forbidden." Theoretically and legally, the Chinese
people are invested with a great deal of liberty.
In practice, nonetheless, some of them are bereft of such civil rights. Zhao
Ziyang, former CCP general secretary, had been illegally kept under house
arrest since 1989 because he said the peaceful Tiananmen Square pro-democracy
demonstrators should be heard; he pleaded with them to leave for their own
safety and later criticized what has been called the Tiananmen Massacre of June
4, 1989. During his detention, the deposed leader had to get Beijing's approval
even before he went on personal, low-profile sightseeing in Guangdong province
and Shanghai. All those rights and noble sentiments were approved after his
detention until his death.
In June of 1989, the fourth plenum of the 13th CCP National Congress passed the
"Report on Blunders Zhao Ziyang Committed in the Anti-CCP &
Counter-Revolutionary Riot" - the "riot" refers to the student-led democratic
movement on June 4. Submitted by the CCP Central Politburo, the report
concluded, "At the critical moment of the party and the country, Zhao Ziyang
made erroneous decisions that tended to support the riot and split the party.
Therefore, Zhao was inevitably responsible for the outbreak and the development
of the riot."
This accusation, however, has never been lodged in a court, nor has any verdict
been rendered. In other words, the house arrest imposed on Zhao was not legal
because it was not sanctioned by a court or procuratorate, in accordance with
the constitution. (Of course, the constitutional amendments that should have
protected him were passed long after what is now euphemistically called the
Tiananmen "incident".)
When Zhao breathed his last, his daughter reportedly let out a grateful sigh.
"He is free at long last," those close to the family quoted her as saying. But
as Bao Tong, undersecretary of the departed leader; Liu Xiaobo, a celebrated
writer, and hundreds of mourners spontaneously paid homage at Zhou's residence,
they were intercepted outside the door, apparently by several plainclothes
police, according to some foreign newspaper reports.
Still, it is an open question if President Hu Jintao - who also is Communist
Party chief and head of the military - has the final say in Zhao's case,
because quite a few officially retired but still influential party leaders were
and are embroiled in the condemnation of Zhao for supporting the Tiananmen
protesters. Now, one yardstick by which to judge whether Hu is talking the talk
and walking the walk - on the rule of law - lies in whether the ex-president,
who many say suffered grievous injustice until his death, will have a
posthumous rehabilitation, and if so, how soon.
In China today, social stability or solidity of the CCP monarchy outweighs the
rule of the constitution. On January 15, as Zhao lay dying in a hospital,
Beijing issued a circular to all local-level CCP organs, alerting the whole
party to some alleged "alien foes" and "cynics at home" who would very likely
jeopardize the social and political stability, according to the US Cable News
Network (CNN) website. It appears that "stability" was accorded priority over
the law.
Suppose that hundreds of dissidents huddled together to mourn a dead leader who
deprecated the bloody military suppression of the peaceful protest march
spearheaded by well-educated students in1989? What's the big deal? At the most,
it would make headlines in foreign newspapers, but all Chinese domestic media
would assuredly keep their noses clean and their lips buttoned. Divested of
freedom of speech and subject to invisible but inexorable, supervision, the
mourners, or those whom Beijing calls "cynics", only have the slimmest chance
of rocking China's political boat.
Some 15 years ago, the fledgling communist government had good reason to worry
about democratic campaigns. First, young intellectuals at the time were
impressed by the previous CCP general secretary Hu Yaobang (1915-1989), who was
forced to resign "for failure to control the student demonstrations". Second,
the whole nation was fuming at official corruption while CCP general secretary
Zhao Ziyang, who took over the post after Hu Yaobang stepped down, furthered
market economy reform. Nowadays, however, youngsters are less familiar with the
chaotic days of Zhao's tenure, while public resentment toward the government
has showed signs of easing since President Hu's administration redoubled its
anti-graft efforts.
To some extent, how Beijing adjusts its policy toward the democrats after
Zhao's passing away will show the world how fast China's politics is keeping
pace with the times, as well as how the CCP leaders pursue the truth about
democratic student movements that live eternally in the human heart.
(Copyright 2005 Asia Times Online Ltd. All rights reserved. Please contact us
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