- Associated Press
By Stanley Lubman
The recent Wukan protest has faded from the media, but one issue continues to percolate in its wake: the role of Chinese law, which some protesters invoked.
Two Chinese intellectuals have since spoken up about the need to strengthen the rule of law around property rights and, more importantly, about the need for a “paradigm shift” in the way officials think about rights and handle related disputes.
Some of the Wukan protesters were indeed conscious of their rights, as evidenced by one villager’s exclamation that “we must use the weapons provided by the legal system to fight corruption to the end.” Another protestor said he was confident that the central government would assist villagers who had lost land due to the corrupt actions of local officials because “the country is ruled by law.”
The protest was resolved, not by law, but by the administrative actions of provincial Party officials. It’s possible that the village officials responsible for the land transaction that sparked the protests will be accused of corruption, tried and punished, but even that legal process, if it occurs, would likely be a fait accompli following a prior Party decision on their punishment.
The protests nevertheless prompted some interesting commentary on Chinese legal issues, including from economist Hu Deping, the son of former CCP General Secretary Hu Yaobang.
In a commentary posted to a forum discussing a People Daily’s editorial on Wukan, Hu observes that rural land is often treated as if it belongs to the state rather than by collectives as provided by law — an erroneous conviction that helps justify forced demolitions. Disregard for rural collective rights, he writes, “is enough to change the character of reform.” In a single powerful sentence – all the more powerful because it comes from a princeling — he declares his hope “that the Wukan incident can push society into establishing a system that takes democracy and the rule of law as its foundation.” He ends with the hope that similar issues will be solved “using rule of law and negotiations.”
A lengthier and even more provocative commentary was posted to the same forum by Wu Si, editor of the party history magazine Yanhuang Chunqiu.
In analyzing the protests, Wu contrasts two “modes of thought” that appeared in Wukan. One was a hostile “us-versus-them” mentality that assumed a zero-sum conflict. Wu argues that such thinking is common in situations like Wukan’s owing in part to the failure of the courts, which are generally reluctant to take up cases involving land and “the political regime.” He notes that the Party Secretary of Shanwei, the prefectural city in which the village of Wukan is located, was ready to blame outsiders and the media for deepening the conflict.
Wu’s second “mode of thought,” which he proposes as an alternative approach to social conflict, is the ”civil rights mode of thinking,” or rule of law. This, he argues, should be the only basis for the government’s approach, and ought to lead to decision by an independent court without the government being “disturbed” by administrative agencies. He goes on to note that the provincial working group that eventually negotiated an end to the process promoted five principles for resolving the crisis, two of which were “total transparency” and “rule of law.” Wu argues the weakness of China’s courts makes the involvement of administrative working groups necessary. That, in turn, invites administrative interference. In the future, he writes, there must be “independent court rulings” and constitutional government.
Wu traces the “us-versus-them mentality” to the historical emphasis placed by the CCP on class warfare. He argues that shifting the emphasis to other CCP principles — serving the people and putting the people first — would expand political rights and economic freedom and lead to a prosperous society that would be “relatively stable” and “harmonious” as well. Wu concludes by urging the property rights must be clarified, village elections improved and laws enforced.
Wu offers no sure path to attain the goal he advocates, but his conclusion is most dramatic: “To solve problems with civil rights and the rule of law in mind, there must be a paradigm shift for cadres,” who need to change the way the way they “mediate crises.” In solving social conflicts, he writes, new ways of thought “will open a new road” for Chinese society.
Invocation of the rule of law has been a ritual for some years in China, but it is usually only activists and law reformers who are willing to suggest it is an entirely distinctive approach to ordering society. The call for a “paradigm” change in a party magazine suggests something more radical than the usual slogans and formulas.
Some Western observers, including this writer, have tried to incorporate into their analyses of Chinese law the idea of “legal culture” — the way people in a society, from top to bottom, think about where law comes from, its aims and its methods. That is what Wu Si touches on when he suggests that cadres rethink about how they address social conflict. He is proposing that in practice they consciously place a much greater reliance on law and on legal institutions, which could become “a force for reform” leading to “systemic changes.”
Wu also suggests that Guangdong and Shanwei might initiate reforms. In recent years, a number of important reforms have been initiated locally. Among them is the 2003 adoption in Guangzhou of an open government law, which preceded adoption of a similar law by the central government. Even more important was the adoption by Sichuan Province of China’s first provincial-level administrative procedure law in 2008, followed by Shandong’s adoption of a similar law that became effective on January 1, 2012. There is hope that these two laws will also eventually provide a model for reform of existing national legislation.
If thoughtful reflections like those discussed here inspire local reforms, the Wukan villagers will deserve credit for having struck a chord that could continue to resound.
Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
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The Wukan Protests and the Rule of Law
