Recently, when evaluating the achievements China has made during the historical periods before and after reform and opening-up, Chinese President Xi Jinping pointed out, “The socialist construction conducted by the people under the leadership of our Party is divided into two historical periods – before and after reform and opening-up. The two periods are interconnected, but also different from each other. However, they both essentially reflect the practical explorations of socialist construction conducted by the people under the leadership of the Party. Socialism with Chinese characteristics began to take shape in the new era of reform and opening-up, but it is also grounded in New China’s 20-plus years of experience in building and carrying out the basic system of socialism . . . Although the two historical periods have huge differences in the guidelines, policies, and practices of socialist construction, they are definitely neither isolated from nor essentially opposite to each other . . . We cannot use the historical period after reform and opening-up to deny the historical period before reform and opening-up, and vice versa . . . We must adhere to the ideological line of seeking truth from facts, distinguish the essentials from the nonessential, stick to truth, correct mistakes, and draw lessons from our past experience, and on this basis push forward the undertakings of the Party and people.”

 

In his speech, President Xi gave an overall evaluation of the achievements that China has made in socialist construction during the two historical periods. We should specifically evaluate China’s human rights legislation in the two historical periods before and after the country’s reform and opening-up in accordance with the spirit of President Xi’s speech.[page]

 

The construction of China’s human rights legal system is based on its efforts on human rights legislation prior to reform and opening-up. On this basis, however, the nation’s legal system construction has realized a historic transition and achieved a giant leap forward under the new historical conditions after reform and opening-up.

 

Since the founding of New China, the nation has formulated 229 laws, more than 600 administrative regulations of the State Council, and over 7,000 local regulations that are currently in effect, forming a complete legal system on human rights with the national constitution as the core. However, all these were not accomplished in one stroke, but were achieved on the basis of the human rights legal construction before the nation’s reform and opening-up. The construction of China’s human rights legal system over the past six decades is an indivisible whole.

 

Since its establishment, the Communist Party of China (CPC) has adhered to the objective of fighting for the rights of the people, namely striving for human rights. This is the most fundamental reason why the CPC won the people’s support and eventually achieved the great victory of the Chinese revolution. The founding of New China laid the institutional foundation and provided possibilities for the building of the country’s human rights legal system.[page]

 

Wang Chen, then minister of the State Council Information Center, points out in The Six Decades of Historic Advancement of Human Rights in China, “The founding of New China put an end to the time when Chinese people were oppressed by the ‘three big mountains’ and opened a new era of human rights, which is a tremendous monument in China’s history of human rights development. The statement cannot be more accurate. After the founding of New China, the nation underwent a series of profound, meaningful social transformations, which offered an institutional basis and guarantee for the construction of the country’s human rights legal system. During this period, China formulated the Constitution and a number of other laws on human rights protection, laying a solid foundation for construction of the nation’s legal system. 

 

The 1954 Constitution embodied the great achievements that China made in the construction of human rights legal system, and later became the basis of the legal system’s future advancement. Also, it served as the foundation of the 2004 Constitution, whose basic principles had been stipulated in the 1954 Constitution. Pursuant to the changes in the new historical period and the requirements of the construction of socialism with Chinese characteristics, the 2004 Constitution further specifies and explains those stipulations in order to keep pace with the times, amending and enriching the former 1954 Constitution. Hereinafter, we make a brief comparison between these two constitutions.

 

Article 85 of the 1954 Constitution stipulates that “all citizens of the People’s Republic of China are equal before the law.” The principle is preserved and further specified in the 2004 Constitution. According to Article 33 of the 2004 Constitution, “All persons having the nationality of the People’s Republic of China are citizens of the People’s Republic of China. All citizens of the People’s Republic of China are equal before the law. The state respects and protects human rights. Every citizen is entitled to the rights stipulated in the Constitution and the laws, and at the same time must carry out the duties prescribed there in.”[page]

 

In accordance with Article 86 of the 1954 Constitution, “All citizens of the People’s Republic of China, who have reached the age of eighteen, have the right to vote and stand for election, irrespective of their nationality, race, gender, occupation, social origin, religious belief, education, property status, or length of residence, except mentally disabled persons and persons deprived by law of the right to vote and stand for election. Women have equal rights with men to vote and stand for election.” The 2004 Constitution also stipulates that “all citizens of the People’s Republic of China, who have reached the age of eighteen, have the right to vote and stand for election, irrespective of their nationality, race, gender, occupation, social origin, religious belief, education, property status, or length of residence.” This stipulation is identical to that of the 1954 Constitution, except that the sentence –“women have equal rights with men to vote and stand for election” – is deleted. This is because it duplicates the paragraph in Article 96 of the 1954 Constitution that particularly stipulates that women enjoy equal rights with men in all spheres of political, economic, cultural, social and family life. However, in addition to reiterating the above stipulation of the 1954 Constitution, Article 48 of the 2004 Constitution makes some specific provisions, such as “the state protects the rights and interests of women, applies the principle of equal pay for equal work to both sexes, and selects and trains women for work as government cadres.” Obviously, such stipulations in the 2004 Constitution are more specific than those in the 1954 Constitution, thus meeting the demand of human rights development in today’s China.[page]

 

Article 89 of the 1954 Constitution stipulates that “the personal freedom of citizens of the People’s Republic of China is inviolable. No citizen may be arrested without the decision or approval by a people’s court.” The 2004 Constitution retains the paragraph. Moreover, it has specific stipulations for protecting personal safety by banning behavior violating personal rights of citizens that occurred during the “Cultural Revolution,” such as locking people in cowsheds. According to Article 37 of the 2004 Constitution, “the personal freedom of citizens of the People’s Republic of China is inviolable. No citizen may be arrested except by judgment of a people’s court, or with the approval or by judgment of a people’s procuratorate; all arrests must be made by a public security organ. It is forbidden to unlawfully detain or otherwise deprive a citizen of their personal freedom or impose restrictions thereon, or carry out unlawful body searches of citizens.” Through adding stipulations like “all arrests must be made by a public security organ” and “it is forbidden to unlawfully detain or otherwise deprive a citizen of their personal freedom or put restrictions thereon, or carry out unlawful body searches of citizens,” the 2004 Constitution enriches and renews the 1954 Constitution. In this way, personal freedom has been placed under the protection of specific stipulations of the Constitution.

 

Based on China’s national situation in the new historical period, new contents were introduced into the 2004 Constitution. Article 88 of the 1954 Constitution stipulates that “citizens of the People’s Republic of China enjoy freedom of religious belief.” However, supported by Western hostile forces, some extremists carry out campaigns to disrupt socialist construction and split the nation in the name of religious activities. China is facing a thorny situation regarding religious issues. To specify the country’s human rights policies of religious belief and oppose anti-Party and secession activities in the name of religion, Article 36 of the 2004 Constitution makes a more contemporary and pertinent stipulation on the basis of Article 88 of the 1954 Constitution. According to the 2004 Constitution, “citizens of the People’s Republic of China enjoy the freedom of religious belief.” Furthermore, it also stipulates that “No state institution, public organization, or individual may compel citizens to adhere to, or not to adhere to, any religion; nor may they discriminate against citizens who adhere to, or do not adhere to, any religion. The state safeguards normal religious activities. No one may make use of religion to engage in activities that are disruptive to the public order, harmful to the health of citizens or encumber the state educational system. Religious organizations and religious affairs are not subject to foreign control.” Such religious and human rights policies not only safeguard citizens’ rights to religious freedom, but also prevent religion from being used to endanger the people and state. The new stipulation with Chinese characteristics represents an unprecedented and unique innovation in the world.[page]

 

The 1954 Constitution has already made fundamental stipulations on the relationship between citizens’ rights and state organs and their staff members. For instance, Article 97 of the 1954 Constitution stipulates that “citizens of the People’s Republic of China have the right to make written or oral complaints to organs of state at any level against any person working in an organ of state for transgression of law or neglect of duty. People suffering loss by reason of infringement of their citizen’s rights by personnel of state organs have the right to compensation.” The 2004 Constitution further stipulates that “citizens of the People’s Republic of China have the right to make criticisms or suggestions with regards to any state organ or its staff. Citizens have the right to lodge complaints, accusations, or charges against the corresponding state organ regarding the misconduct or delinquencies of any other state organ or its staff; the fabrication or distortion of facts for the purpose of false incrimination or defamation, however, is prohibited. In cases of complaints, accusations, or charges lodged by citizens, the corresponding state organ must verify the facts and responsibly handle the matter. No one may suppress such complaints, accusations, or charges, or retaliate against the citizens lodging them. People suffering loss by reason of infringement of their citizen’s rights by any state organ or its staff have the right to obtain compensation according to related legal provisions.” By comparison, we can see that stipulations in the 2004 Constitution are more specific and more suitable for the situation of the new historical period. Meanwhile, some expressions are unique to Chinese society. For example, such stipulations as “citizens have the right to make criticisms or suggestions with regards to any state organ or its staff” cannot be found in the constitution of any other country.[page]

 

In addition, the 2004 Constitution specifies citizen’s economic rights that are not elaborated in the 1954 Constitution. For instance, Article 93 of the 1954 Constitution stipulates that “working people in the People’s Republic of China have the right to material assistance when they are old, ill or disabled. To ensure that working people can enjoy this right, the state provides social insurance, social welfare and public health services and gradually expands these facilities.” Based on the spirit and statement of the Article, the 2004 Constitution gives a more detailed and accurate statement in its Article 45: “Citizens of the People’s Republic of China have the right to material assistance from the state and society when they are old, ill, or disabled. The state develops social insurance, social welfare and medical health services that are the prerequisites for proper enjoyment of this right by citizens. The state and society at large ensure the livelihood of disabled veterans, provides pensions to the families of martyrs, and gives favored treatment to the families of military personnel. The state and society help make arrangements for the employment, livelihood, and education of blind, deaf, mute, and other disabled citizens.” Other stipulations on citizens’ economic rights in the two Constitutions are not enumerated herein.

 

The 1954 Constitution has made comprehensive stipulations on human rights, and it also has stipulations concerning cultural rights. For instance, Article 46 of the 1954 Constitution stipulates that “citizens of the People’s Republic of China have both the right and obligation to receive education.” The 2004 Constitution refines those stipulations, according to which “citizens of the People’s Republic of China have the right to receive education. To ensure that citizens can enjoy this right, the state establishes and gradually expands schools at all levels and other cultural and educational institutions. The state pays special attention to the physical and mental development of young people. ”[page]

 

Since it was passed, the 2004 Constitution has received high praise and acclaim from many who have declared that “human rights have finally been written into the Constitution.” Indeed, it deserves such praise and acclaim. However, an analysis of the 1954 Constitution reveals that it had already included contents concerning human rights. Despite the fact that it did not mention the term “human rights,” the 1954 Constitution concerned all rights of citizens, including first generation, second generation and third generation human rights such as the right to life, the right to subsistence and development, and political, economic, cultural, and social rights, as well as contents in other aspects.

 

Two points related to this issue require our special attention. On the one hand, that human rights have been written into the 2004 Constitution is worth hailing because it testifies to the Party and state’s great concern for human rights and marks an epoch-making achievement for China in human rights protection. On the other hand, we must accurately appraise the construction of China’s human rights legal system. During the “Cultural Revolution,” the construction of China’s human rights legal system was affected, and mistakes were made in terms of human rights. However, there remain achievements, and we can expect a bright future. It is unfair to conclude that human rights did not exist in China before reform and opening-up and the nation did not do well in human rights protection just because of the mistakes it made during the “Cultural Revolution.” As a matter of fact, human rights had been included in the Constitution of China prior to the implementation of its reform and opening-up policies, although in that historical period, the Constitution did not use the term “human rights,” but used “the people’s rights.”[page]

 

Why was the term “human rights” not adopted in the 1954 Constitution? That was the requirement and inevitable result of historical development, which is no ground for blame. As we all know, it was only five years after the founding of New China when the 1954 Constitution was formulated. At that time, the West, represented by the United States, imposed a blockade on China, aiming to strangle the newly founded People’s Republic of China. Moreover, the Kuomintang regime in Taiwan still intended to “retake the mainland,” and remnants of the overthrown exploiting classes still tried to subvert and disrupt New China and restore their regime. When they carried out their activities, they often used “human rights” as a political tool. For instance, they incited riots and carried out counter-revolutionary campaigns with the excuse of freedom of speech and assembly. The priority at that time was to consolidate the regime of New China and ensure the smooth construction of socialism. Therefore, we could not allow enemies to carry out activities against the People’s Republic of China in the name of human rights. Against such a historical background, the 1954 Constitution did not adopt the term “human rights” probably for this reason or out of consideration for fighting against the capitalist philosophy of human rights. After China implemented reform and opening-up policies, historical conditions completely changed. The Chiang Kai-shek regime no longer existed, and the People’s Republic of China has become one of the most impregnable powers in the world. In this new historical context, it became natural for the term “human rights” to be used in the new Constitution.

 

In addition, rampant leftism and expanded inner-Party struggles during the “Cultural Revolution” led to some mistakes and problems in human rights protection. In this case, people urgently demanded respect and protection of human rights, thus making human rights issues a grave concern among people. Then, using the term “human rights” became logical and rational at that time. Essentially, the mistakes that China made in human rights protection during the “Cultural Revolution” just reflect that the country’s human rights legal system was still imperfect and human rights were not given full respect at that time. However, we cannot conclude that human rights did not exist in China then. This view, in fact, totally denies the ruling of the CPC in that period.[page]

 

In 1991, the State Council Information Office issued a white paper entitled China’s Human Rights Situation, the first report on human rights published by the Chinese government. Afterwards, “respect and protect human rights” was written into the Constitution at the 15th and 16th CPC National Congresses. All these indicate that the Party and the state have drawn lessons from the “Cultural Revolution” and raised human rights issues to a new height. This also meets the requirements of the times. The principles and specific stipulations regarding human rights in the 2004 Constitution do not indiscriminately copy Western concepts and practices of human rights, but instead, on the basis of the 1954 Constitution, clarify socialist human rights principles with Chinese characteristics and adopt principles and related regulations which meet China’s national conditions.

 

The 1954 Constitution and the Marriage Law formulated before the country’s reform and opening-up, as well as many others laws and regulations, are integral parts of New China’s human rights legal system. Without the efforts in building the human rights legal system before the nation’s reform and opening-up, China would not have made such great achievements in the construction of the socialist human rights legal system with Chinese characteristics after reform and opening-up. It is on the basis of China’s development of the human rights legal system and lessons which the country learned from successes and mistakes of the 1954 Constitution and other laws and regulations that its human rights legal system has been progressively improved with such huge advancement and rapid development since the nation’s reform and opening-up.[page]

 

History shows that without the explorations and achievements regarding China’s legal system construction prior to its reform and opening-up, the nation’s human rights cause could not have achieved such great progress after reform and opening-up. We should adhere to the spirit of President Xi’s speech and correctly evaluate the relationship between the history and reality of China’s human rights legal system construction during the two historical periods, especially in the complicated international human rights environment. Meanwhile, we should stick to the fundamental principles and spirit of human rights prescribed in the 1954 Constitution and the 2004 Constitution, insist on the leadership of the CPC, uphold human rights ideas with Chinese characteristics, and unswervingly follow the road of building a socialist legal system with Chinese characteristics.

 

(Li Shi’an is Professor of the Department of History, Renmin University of China.)