HUA Guoyu* & LYU Shengwang**

 

Abstract: During the War of Liberation, the liberated areas, under the leadership of the Communist Party of China, kept deepening and developing the concepts and ideas of protecting human rights, promulgated a series of human rights laws and related administrative programs, and put them into practice. The contents included not only the political rights of citizens but also their economic, social, and cultural rights, with emphasis on the protection of the rights to subsistence and development. The human rights legislation in the liberated areas has a wartime and class-based nature due to its social environment. It reflects the transition of the Communist Party of China from a revolutionary party to a ruling party on the historical stage. It played an important role in directing, advancing, and promoting the progress of democracy and the rule of law at that time and accumulated experience for the human rights legislation after the founding of the People’s Republic of China. History proves that the Communist Party of China has always been a political party dedicated to fighting for the human rights of the Chinese people, and only the Communist Party of China can lead China’s human rights development to a deeper level.

 

Keywords: The Communist Party of China· human rights legislation in the liberated areas ·Constitutional Principles of the Shaanxi-Gansu-Ningxia Border Region·Outline of China’s Land Law

 

During China’s War of Liberation (1945-1949), the human rights legislation promulgated by the Communist Party of China (CPC) was the result of combining the traditional Chinese Confucian philosophy with revolutionary practice under the guidance of the Marxist view on human rights and Mao Zedong Thought, and the quintessence of the Sinicization of the Marxist theory of human rights. The laws and decrees on human rights in this period have kept the essence of those in the Anti-Japanese War period, and boast unique characteristics of the times. It is undoubtedly a milestone in the process of human rights construction by the CPC in terms of both their institutional breakthroughs and the forward-looking content.

 

 

With victory in the War of Resistance against Japanese Aggression (1931-1945) and the World Anti-Fascist War, China was undergoing major changes in the revolutionary situation and encountering new challenges in the political, economic, and cultural development of the base areas. As a key measure to consolidate the rule of law and improve people’s livelihoods, the construction of human rights in base areas was naturally put on the agenda. Due to the loss of national sovereignty in that era, individual human rights were destined to be out of the question. The victory of the War of Resistance against Japanese Aggression enabled the Chinese nation to achieve national independence and self-determination. Seeing the country full of suffering and distress after the war, the CPC raised its awareness of the importance of human rights to a new height. However, in 1946, the governing Kuomintang flagrantly launched an all-out civil war regardless of the hardships of people, “To tear up the truce agreement in the political consultative conference and put an end to domestic peace, democracy and unity, the Kuomintang incited anti-Sovietism and anti-communism, and savagely beat up progressives striving for democracy and peace; and in northeast China, they murdered the national generals who had performed meritorious service in the AntiJapanese United Army in a systematic and planned way.”¹ As the wrongdoings of anti-human rights by the Kuomintang kept coming up, the idea of founding a nation peacefully proposed by the CPC and the democratic parties ended in smoke. The masses gradually realized Kuomintang’s true intention of “launching a civil war in the disguise of seeking for peace” and grew increasingly discontented with its reactionary rule. In the liberated areas, the CPC set about laying down a revolutionary legal system suitable for the new revolutionary period to safeguard the fruits of the revolution, with an emphasis on the legal protections for human rights.

 

 

To begin with, the Marxist view of human rights is the theoretical foundation of human rights legislation. “The Marxist view of human rights is the integration of criticism and construction rather than a fantasy.”² Before then, the capitalist view of human rights held that “Human, in the concept of human rights, is an abstraction with almost no humanity, for he has forgone all the characteristics that constitute the human as individuals.”³ Karl Marx clearly pointed out in On the Jewish Question that the “human” in human rights refers to “human in reality,” comprehensively criticized the bourgeois human rights theory premised on an “isolated and abstract human,” and emphasized that the “human in reality” should be taken as the basis for investigating history and the law. During the War of Liberation, the CPC emphasized: “the individuals in reality who live under certain economic conditions.” For example, the Constitutional Principles of Shaanxi-Gansu-Ningxia Border Region, as a program struggling for national independence and human rights, emphasized the interests of the female, ethnic minorities, the peasantry, and the working class, and the protection of the right to the subsistence of the toiling masses. The idea of human rights contained therein was “a collectivist view of human rights guided by Marxism,”⁴ aiming to realize the all-round and free development of real human beings.

 

Second, the viewpoint of human rights in Mao Zedong Thought provides direct theoretical guidance for human rights legislation. In his Speech to the Assembly of the Shaanxi-Gansu-Ningxia Border Region on November 21, 1941, Mao Zedong stated briefly, “What is being practiced in the Shaanxi-Gansu-Ningxia Border Region is the Three People’s Principles, i.e., Nationalism, Democracy, the People’s Livelihood... In view of the current situation, nationalism aims to overthrow Japanese imperialism, and the latter two are to work for the benefit of all people fighting in the Anti-Japanese War, rather than a small minority. Everyone in the country shall have the right to personal freedom, the right to participate in public affairs, and the right to protect property. All the people in the country shall be given a chance to express ideas and have access to clothes, food, employment, and education. In short, everyone should be properly placed.”⁵ It is the relatively clear and concentrated embodiment of Mao Zedong’s views on human rights, and also the summary of the standpoint on human rights adhered to by the CPC since its establishment: Upholding national independence and sovereignty is the fundamental guarantee for the realization of human rights. The right to subsistence is the primary content of human rights. It is important to establish a democratic regime, create a revolutionary legal system, and fully protect the rights of the people. Under the guidance of this theory, the CPC promulgated the Regulations on Protecting Human Rights and Property Rights in Shaanxi-Gansu-Ningxia Border Areas as early as the Yan’an period, aiming to ensure that human rights and property rights were endowed and guaranteed by law. In 1942 when the Regulations were promulgated, there was a well-known case of illegal detention resulting in death in Yan’an, “The Murder Case in a Students’ Sanatorium”.⁶ Jiefang Daily commented on the case, criticizing the lack of attention to human rights: “Some comrades still fail to either understand that respecting and protecting human rights are the initial conditions for establishing revolutionary order, or know that tying up and detaining people at random belong to the “style of guerrilla” that shall be rooted up.”⁷ In the War of Liberation, the CPC followed and carried forward the previous experience on human rights to upgrade them as specific policies and a political system, and successively formulated a series of important documents on human rights protection, including the Constitutional Principles of the Shaanxi-Gansu-Ningxia Border Region and the Outline of China’s Land Law, to protect the political, economic and cultural rights of more than 100 million people in the liberated areas.

 

In addition, the laws and decrees on human rights during the War of Liberation bear the imprint of Chinese traditional Confucian philosophy. The cultural differences between the East and the West result in the different development paths of human rights in China and the West, although both trace the origin of human rights back to the philosophy of their respective axis times and take it as the theoretical basis. The CPC attaches great importance to human rights, while the Western view of human rights based on the theory of natural rights cannot provide a reference for solving the problems of human rights in China. How to safeguard the people’s economic, social and cultural rights, especially the right to subsistence and the right to development, was the real problem facing the communists at that time. Only by combining Marxism with China’s actual situation and realizing the Sinicization of the Marxist theory of human rights could China’s problems be effectively solved. Starting from the historical traditions of China, and especially drawing on the Confucian traditions from the pre-Qin period, including such ideas as “people-oriented thought” and “enlightenment” in “the people are the foundation of a state,” “a just cause should be pursued for the common good”, “inequality rather than want is the cause of trouble,” and “moral education goes first”, the CPC members developed the concept of human rights protection with Chinese characteristics.⁸ For example, the Outline of China’s Land Law stipulated “implement the land system of land to the tiller,” the Administrative Program of the Inner Mongolia Autonomous Government stipulated to “implement the campaign of reducing rent and increasing capital and mutual assistance to improve people’s economic life,” and “ease people’s burden, regulate finances, establish a reasonable tax system and abolish official servants,”⁹ Constitutional Principles of the Shaanxi-Gansu-Ningxia Border Region stipulated to “guide lawbreakers by education and persuasion,” and so on. The promulgation of these human rights documents significantly improved the level of protecting the people’s right to subsistence and right to development in the liberated areas, paving a path of human rights development in the liberated areas that suits China’s national conditions.

 

 

During the War of Liberation, the laws and decrees promulgated by the CPC concerning the protection of human rights included the Constitutional Principles of the Shaanxi-Gansu-Ningxia Border Region (1946), the Northeast Democratic Allied Army Issues a Proclamation in Changchun to Protect People’s Rights (1946), Administrative Program of Nenjiang Province (1946), Administrative Program of Xing’an Province(1946), Joint Administrative Program of the Democratic Governments in Northeast Provinces (Special Cities) (1946), Administrative Program of Inner Mongolia Autonomous Government (1947), Outline of China’s Land Law (1947), Proclamation of Harbin Municipal People’s Government on Prohibiting Illegal Arrest and Trial and Violating Human Rights of Others (1948), and Administrative Guidelines of North China People’s Government (1948), etc..

 

The specific contents of these human rights legislations touch upon political, economic, social and cultural and other rights: guarantee people’s political rights and freedoms of speech, publication, assembly, association, thought, belief, election and so on; protect human rights, political power and financial rights, and none shall illegally infringe; advocate equal rights between men and women, respect and improve the social status of women and give due consideration to their special interests, and the right to freedom of marriage and monogamy; oppose Han chauvinism, implement equal autonomy for all ethnic groups, and allow the autonomous governments of ethnic minorities to make autonomous laws and regulations on the principle of not contradicting the provincial constitution; implement the land system of land to the tiller, and protect the tenant rights of farmers; safeguard the rights of criminal suspects and the guidance of lawbreakers through education and persuasion; the development of public services and the popularization of social education; and such.

 

Take the Constitutional Principles of the Shaanxi-Gansu-Ningxia Border Region as an example. As a product of the democratic politics of new democracy at a certain stage of development, it has an important position in the history of the Chinese Constitution. In terms of civil and political rights, it stipulated that “the people elect representatives at all levels generally, directly, equally and by secret ballot, and representatives at all levels elect civil servants” and “governments at all levels are responsible to representatives at all levels, and representatives at all levels are responsible to electors”.¹⁰ The system of people’s congresses was creatively established to provide a constitutional guarantee for the people to exercise their democratic rights. It also proposed prohibiting any governmental agencies and organizations other than judicial and public security organs from exercising the power of arrest and trial and guarantees the right of the people to sue any public official in dereliction of their duty. It put forward the right of national autonomy in the areas inhabited by minority nationalities and stipulated the government’s obligation to guarantee the exercising of political rights. As for economic, social, and cultural rights, it stipulated that people have the right to be free from economic poverty, ignorance, and ill-health, as well as the rights to ethnic equality, gender equality, and special care for women and girls, and also clarifies specific measures that ensure the realization of all rights. For instance, it stipulated that “the people have the right to freedom from economic impoverishment and poverty by reducing rent and interest rates and paying rent and interest rates, developing the economy on a large scale, fighting against famine, providing disaster relief, and supporting the elderly, the weak and the impoverished,” and that the people have the right to freedom from ignorance and ill-health, by providing free national education, free higher education, and general social education to serve the people, ensuring that the top students are given preferential treatment, and developing health education and medical facilities, and so on.¹¹ This constitutional document has accumulated a great deal of useful experience for democratic political development and human rights protection after the founding of the People’s Republic of China.

 

To guarantee the right to subsistence of farmers, the CPC formulated the Outline of China’s Land Law, the first programmatic document on land system reform publicly promulgated by the CPC after the victory of the Anti-Japanese War. Land has a special meaning in China. From the perspective of ancient Chinese history, the land issue is the core of the administration of all dynasties and the main factor leading to a change of ruler. The land system is a major issue related to the right to the subsistence of farmers, and the Party leaders have long been deeply aware of this law, “Whoever wins over the peasants wins China; whoever solves the land problem wins over the peasants.”¹² Therefore, the CPC “abolished the feudal and semi-feudal land system of exploitation, and implemented the land system where the tiller had his land”.¹³ The farmers acquired ownership and the right to use the land, which has greatly improved their economic status and living environment, guaranteed their right to subsistence and right to development, laying a solid economic and material foundation for fully enjoying and exercising other basic rights.

 

 

In addition to stipulating people’s basic rights in an all-round manner, there are many provisions in the human rights legislation during the War of Liberation, which have distinctive characteristics of the times.

 

First, the legislation on human rights in liberated areas features the characteristics of wartime. To adapt it to people’s requirements for human rights protection during the civil war, the human rights legislation in the liberated areas incorporated many provisions with wartime characteristics to ensure the stability of the people’s political power. For example, the Constitutional Principles of the Shaanxi-Gansu-Ningxia Border Region stipulated that “the people have the right to armed self-defense by means of self-defense corps and militia”;¹⁴ the Northeast Democratic Allied Army proclaimed that “Those who voluntarily surrender their weapons to the government, the guard headquarters or the public security Bureau and repent of their crimes can be dealt with leniently, while those steeped in evil and refuse to repent shall be punished severely”¹⁵; in all base areas, emphasis was placed on eradicating fascist servility, “Thoroughly root out the remaining forces of fascism, liquidate the assets of the enemy and the puppet regime, severely punish the Japanese war criminals and any lackey of the enemy including traitors and spies who had brought harm to the people of northeast China, and implement a lenient policy for those who had seriously repented their errors”;¹⁶ Administrative Program of Xing’an Province stipulated that “military dependents shall be given preferential treatment, bandits and all reactionary forces that destroy democracy and national unity shall be eliminated.”¹⁷ Stipulating such contents in human rights legislation was necessary to establish a people’s regime that truly guarantees human rights he product under the special revolutionary situation during the War of Liberation and was a product under the special revolutionary situation during the War of Liberation. It embodies the viewpoint of historical materialism on human rights, and vigorously promotes the revolutionary process during the War of Liberation and the progress of the institutionalization of human rights protection.

 

Second, the legislation on human rights in liberated areas had a distinct class nature. The Marxist view of human rights abandons the eternal and supra-class bourgeois concept. It won’t cover up or deny the class nature of human rights but insists that in the class society and the society in which class has not died out, the subject of human rights is always the person in a certain class, and the legislation on human rights always serves the interests of a certain class and the social system beneficial to a certain class. “The industrial proletariat, though small in number, represents China’s new productive forces and is the most progressive class in modern China.”¹⁸ “The problem of the peasants is the central issue of the National Revolution which will not succeed unless the peasants join in and provide support.”¹⁹ Thus, the human rights legislation of the base areas explicitly protected the human rights of the working class and the peasant class, such as focusing on improving workers’ living conditions and raising labor efficiency, by implementing wage increases and reducing working hours and mediating in labor disputes “to boost workers’ enthusiasm for production,”²⁰ abolishing the hardworking unitary and the Labor Law and establishing “a reasonable hardworking system,”²¹ to guarantee workers’ benefits. The land issue was related to farmers’ right to subsistence, so “solving the peasants’ land issue is the most urgent and extensive human right in the Agrarian Revolution period and even the whole New Democracy period.”²² Therefore, each base area paid special attention to the land issue, and “the tiller has his land” was written into the relevant laws and decrees without exception, to protect the rights of farmers. It also corrected the erroneous policy of “distributing no land to the landlords and infertile land to rich peasants” by “taking from those who have much and giving to those who have little”. Landlords and their families were given the same land and property as peasants, and the right to subsistence was equally guaranteed for landlords and rich peasants.

 

Third, the legislation on human rights in liberated areas reflected the political transformation of the CPC from a revolutionary party to a ruling party. During the War of Liberation, with the continuous new victories against the Kuomintang, the CPC gradually moved into the spotlight from behind the scenes and took over local government, especially the urban governments. As the CPC’s work focus shifted and the revolutionary military actions were gradually replaced by administrative activities, the imperative military rules and regulations were no longer suited to the requirements for managing large cities, and the laws and decrees on human rights bore the characteristics of nationalization and administration. A key manifestation of the new administrative responsibilities was the greater attention paid to the order and procedure of revolutionary struggle in the protection of human rights, and the former mode of military management and guerrilla style has been changed. Among the many representative decrees are Announcement of Harbin Special Municipal Government to Prohibit Illegal Arrest, Trial and Violation of Human Rights, Administrative Office of Henan, Anhui and Jiangsu Border Region Instructs Governments at all Levels to Effectively Protect Human Rights and Prohibit Extorting Confessions by Means of Torture, and Amendment to the Regulations on Human Rights Protection of Huaihai District, etc.. Take the Announcement of Harbin Special Municipal Government to Prohibit Illegal Arrest, Trial and Violation of Human Rights, issued on April 13, 1948, as an example. It stipulated, “maintain public security after the revolution... establish the order of new democracy, have also been consistent policies of our democratic government. Now the war of self-defense wins continuous new victories and the rear line is being consolidated... To improve the livelihood of the people by consolidating the economic foundation of a new democratic country, we shall further establish democratic order and guarantee human rights.” To protect the human rights of criminal suspects, the main body of the arrest trial was regulated in the first place, “prohibit any organ, organization, school, factory, shop from arrest, detention, interrogation, punishment, confiscation and other violations of human rights, and violators shall be punished as the crime of infringement.” Second, it stipulated the prisoners had the right of complaint. As for the behaviors of “holding any meeting with such violations of human rights as beating and fines” and other actions degrading the prisoners’ personality beyond judicial procedures, the parties had the right to complain to the government.²³ The responsibilities of governments, public security bureaus, and courts in each block were clarified and stricter restrictions were placed on various procedures, “When an arraignment, arrest or search of a house is necessary in connection with a civil or special punishment case, the officer performing his duties must carry an arraignment, arrest or search warrant issued by the competent judicial or public security authority, and the accused has the right to request such certificate, or, in the absence of such certificate, may refuse their performing of duties.”²⁴ At this stage, the laws and decrees on human rights protected not only citizens, but also criminal suspects and criminals, and implemented revolutionary humanitarianism, which embodied the principle of combining punishment of crime with the protection of human rights in the basic concept of modern criminal procedure. Through these laws and decrees, the authorities in the liberated areas defined and implemented the principle of unified exercise of power, such as arrest and trial, thus gradually possessing the basic appearance of modern state power, which means that the CPC had made institutional preparations for taking over the national power and being the ruling party.

 

 

The legislation on human rights during the War of Liberation was the product of the combination of Marxist guiding ideology and China’s actual situation, and it has distinct characteristics of the times and met the urgent demands of the Chinese people. The promulgation of these documents provided a legal guarantee for people’s political freedom and life and property security, greatly boosted the revolutionary enthusiasm of the people, while playing a key role in consolidating social order in the liberated areas and laying the foundation for the CPC to win the final victory of the War of Liberation and establish the people’s political power. In the view of Chen Duxiu, “If the Chinese people would like to end the unenlightened state, they shall spring up and give chase, and attach equal importance to science and human rights.”²⁵ Li Dazhao’s proposal of creating “the constitution of liberating human rights” in his Confucius and the Constitution, to the development and deepening of human rights theory by Mao Zedong, Zhou Enlai and other party leaders at the various development stages of the democratic revolution, the CPC has been committed to “fighting for freedom and human rights.”²⁶ From the preparation for the founding of the CPC, the War of Resistance against Japanese Aggression and the War of Liberation until today, this original aspiration has never changed. History has proved that neither the functionalist “human rights faction” represented by Hu Shi, Luo Longji, and Liang Shiqiu, nor the Kuomintang, which merely took human rights as its slogan and flouted human rights, effectively protected the human rights of the Chinese people, thus they failed to win the support of the people. Only the CPC, always standing by the people’s side and combining the Marxist theory of human rights with China’s reality, has created a road to human rights protection that not only conforms to the principle of universality of human rights but also has distinct Chinese characteristics. Looking back at this period of history, we can conclude that it is the choice of history and the Chinese people that the CPC leads the people in striving for and developing human rights.

 

(Translated by XU Chao)

 

* HUA Guoyu ( 化国宇 ), Associate Professor and Doctoral Supervisor at the Law School, Researcher at the Xi Jinping Thought on Rule of Law Research Center, People’s Public Security University of China.

 

** LYU Shengwang ( 吕圣旺 ), Postgraduate Student at Law School, People’s Public Security University of China. This paper is a phased achievement of the key project of the National Social Science Fund of China, “Study on Developing ‘Fengqiao Experience’ in the New Era” (21AZD083).

 

1. “General Zhou Baozhong and Other Comrades Publish an Open Telegram to the Nation to Denounce the Reactionaries’ Crimes on the Murder of Comrade Li Zhaolin,” Jiefang Daily, March 23, 1946.

 

2. Shu Xin, “Preliminary Exploration of the Institutionalization of Human Rights Protection: Research on the Laws and Decrees on Human Rights Enacted under the Leadership of the Communist Party of China before 1949” (Master’s thesis, Shandong University, 2007), 12.

 

3. Costas Douzinas, The End of Human Rights, trans. Guo Chunfa (Nanjing: Jiangsu People’s Publishing House, 2002), 201.

 

4. Zhang Jiliang, “The CPC Human Rights Ideology and Its Influence on China’s Human Rights Legislation”, Socialism Studies 2 (2004): 77.

 

5. Mao Zedong, Selected Works of Mao Zedong vol. 3 (Beijing: People’s Publishing House, 1991), 808.

 

6. The details of the case are as follows: Liu Shirong, a transport controller in the Students’ Sanatorium, was bound by Bai Zhanshan, head of the General Affairs Office, and others due to a quarrel with his colleagues, and died of suffocation. Bai Zhanshan, Yang Yonghe and other people involved in the case were sentenced to prison terms ranging from one to four years after the trial of the Yan’an District Court and the Border District High Court. Ma Cheng and Xue Yongyi, “Historical Narrationand Realistic Enlightenment: The Murder Case of in a Students’ Sanatorium in 1942 in Shaanxi-Gansu-Ningxia Border Region,” People’s Court Daily, July 6, 2018.

 

7. “On the Murder Case of in a Students’ Sanatorium under the Human Rights Protection,” Jiefang Daily, January 27, 1942. This article was written by Xie Juezai, included in his collection Yi De Shu. Xie Juezai, Yi De Shu (Beijing: People’s Publishing House, 1994), 232.

 

8. The author has conducted specialized research on the contributions of Confucianism to international human rights theory. Hua Guoyu, “Do Human Rights Need a Unified Foundation — Religious and Philosophical Debates during the Drafting of the Universal Declaration of Human Rights,” Tribune of Political Science and Law 5 (2020); Hua Guoyu, “Philosophy of Benevolence as the Basis of Universality of Human Rights: From Article 1 of the Universal Declaration of Human Rights,” Journal of Southwest University of Political Science and Law 2 (2019).

 

9. “Administrative Program of Inner Mongolia Autonomous Government”, Northeast China Daily, May 28, 1947.

 

10. “Constitutional Principles of Shanxi-Gansu-Ningxia Border Region”, Jiefang Daily, April 29, 1946.

 

11. Ibid.

 

12. Edgar Snow, Collected Works of Edgar Snow, vol. 1 (Beijing: Xinhua Publishing House, 1984), 208.

 

13. “Outline of China’s Land Law”, Construction of the Communist Party of China (1921-1991), vol. 1 (Xi’an: Shanxi People’s Publishing House, 1991), 440-442.

 

14. “Constitutional Principles of Shanxi-Gansu-Ningxia Border Region”, Jiefang Daily, April 29, 1946.

 

15. “The Northeast Democratic Allied Army Issues a Proclamation in Changchun to Protect People’s Rights”, Northeast China Daily, May 3, 1946.

 

16. “Administrative Program of Nenjiang Province”, Northeast China Daily, July 13, 1946.

 

17. “Administrative Program of Xing’an Province”, Jiefang Daily, August 6, 1946.

 

18. Mao Zedong, Selected Works of Mao Zedong, vol. 1 (Beijing: People’s Publishing House, 1991), 8.

 

19. Mao Zedong, Collected Works of Mao Zedong, vol. 1 (Beijing: People’s Publishing House, 1993), 37.

 

20. “Administrative Program of Nenjiang Province”, Northeast China Daily, July 13, 1946.

 

21. Mao Zedong, Selected Works of Mao Zedong, vol. 1 (Beijing: People’s Publishing House, 1991), 8.

 

22. Liu Jiagui, “Achievements and Enlightenment of Human Rights Construction of CPC during the New Democratic Revolution”, Qiushi 3 (2014): 22.

 

23. Yang Yonghua, “The Promulgation and Implementation of Human Rights Laws in Shaanxi-Gansu-Ningxia Border Region”, Journal of Lanzhou University (Social Science) 3 (2003): 88.

 

24. “Announcement of Harbin Special Municipal Government to Prohibit Illegal Arrest, Trial and Violation of Human Rights”, Northeast China Daily, April 16, 1948.

 

25. Chen Duxiu, Selected Works of Chen Duxiu (Tianjin: Tianjin People’s Publishing House, 1990), 16.

 

26. Deng Zhongxia, Collected Works of Deng Zhongxia (Beijing: People’s Publishing House, 1983), 502.