Power vs. Rights

This is my translation of a Southern Metropolis article by 邵建, 南京曉莊學院副教授, titled “Where Does the Obstacle to Human Rights Lie?”

“I have recently received the Social Science News, whose front page focuses on social scientists’ interpretation of the 17th Party Congress. One of the pieces talks about the new concept of human rights protection, saying that the Congress report has one outstanding feature: not only does it affirm the ‘healthy development of the human right enterprise’, it also shows unprecedented frequent use of the word ‘rights’. ‘Human rights’ means ‘rights of the human being’. Affirming human rights instead of treating it as ‘the legal right of the capitalist class’ like the state has in the past is no doubt a good thing. The question is: assuming human rights need to be protected, where does the obstacle lie? Fortunately, the question was asked as early as the 20s in the last century, and history’s experience is open to review. We can try, by taking a look at a historic episode - the human rights movement of the last century, to search for the stumbling block.

In the late 1920s, the Kuomintang, through violent revolution, overturned what was then Asia’s first government to be formed under a congressional framework, the Beiyang government (北洋政府), and formed its own nationalist government. In 1929 this government issued a human rights protection order: “In all the countries of the world, human rights are protected by law. With the inauguration of this government, it is necessary to establish a rule-of-law foundation. Within the jurisdiction of the Republic of China, any individual or group is prohibited from illegally harming another’s body, freedom and property. Offenders will be severely punished according to law. The law shall be complied with by all administrative and judicial departments.”

For the government to issue an order to protect human rights could not be anything but a good move, and it seemed to have thought of every aspect of the issue too. But at least for one busybody, there was a big discrepancy in the order. This man was Hu Shi, who had studied in the United States. Shortly after the issuance of the order, Hu Shi wrote an essay called ‘Human Rights and the Rule of Law’ to criticize the order. His most important argument was that the order only prohibited individuals and groups, it did not prohibit government organizations.

Today, what pains us most is the fact that it is the government institutions and those that operate under the Party that are harming people’s bodies, freedoms and properties. That was truly a trenchant point – it laid bare the truth by one stroke: that the biggest impediment to human rights or protection of human rights lies in the government who issued the order.

Hu Shi’s article was published in Shanghai’s ‘New Moon’ magazine. Anybody who has read that piece of history knows that the article caused an uproar and led to the ‘human rights movement’. The movement was the first instance of conflict between liberal intellectuals and the ruling institution over the issue of human rights. It was the prologue to what was to become a long, winding, undulating and sometimes disconnected piece of history. Our efforts today are a continuation of Hu Shi’s efforts back then. From the protection of human rights to the obstruction of human rights, it is only through understanding the latter can the former be possibly implemented effectively. Unfortunately, Hu Shi’s article was vehemently attacked by the then ruling entity. Many Kuomintang members in the provinces and cities openly requested that Hu Shi be punished. Hu Shi and his friends were thus forced to flee Shanghai. From this it can be seen that the people who wanted to suppress the human rights movement were those who had just declared their support for human rights, i.e. Kuomintang themselves.

From today’s viewpoint, Hu Shi’s article “Human Rights and the Rule of Law” has a certain classic quality. The key lesson it offers us is that the biggest harm to human rights comes from power. The enemy of human rights protection is government’s power. And it not only refers to the then Kuomintang government, but also to the subsequent leftist authoritarian regime, and even includes the governments of the United States and United Kingdom. Power, so long as it is power, it does not matter whether it comes from a monarchy or a democracy or from armed revolution, it is invariably a natural harm to a person’s rights.

With the obstacle to human rights now found, the next question is what to do with it. There are two key points: first, power must come from a democracy. Without a democracy, power will hurt people’s rights; and people will be powerless to change the situation. This will continue in a vicious cycle. The key is that power must come from a government BY the people. Second, the distribution of power must be subject to checks and balances. Even power of a democracy can become too great, and within any given space, the greater the power, the lesser the rights – it’s simple arithmetic. That is why democracy alone is not enough, there must be a constitution to check power and protect rights.

Under whatever system, if the power deriving process is not democratized and the exercise of power is not subject to constitution, then all talks about protection of human rights are just empty talks.”