Tue, Jun 03, 2003 page16

• Legal eagles in China seek `change from within'

  Three young scholars are campaigning for the enforcement of rights guaranteed under the Constitution, \na novel idea in China, where leaders have only recently started to pay homage to the `rule of law'

  • NY TIMES NEWS SERVICE
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  Three young legal scholars have created a sensation in Chinese intellectual circles with a modest proposal: to enforce personal rights that are guaranteed in the Constitution, starting with the protection of downtrodden migrant workers in the cities.

  In a petition to the national legislature that has drawn unusual attention and praise in the news media, the scholars challenge an infamous but common abuse of citizens' rights: the system by which big-city police officers detain, fine and expel rural migrants at will, with no judicial oversight.

  The petition, submitted last month, followed a national outcry over the unexplained beating death of a man detained in the southern city of Guangzhou. But the drafters had larger goals in mind when they described the system as "inconsistent with our country's Constitution and laws," and they argued that as citizens they could ask the legislature to revoke it.

  

  Nanyingfang, an enclave near the center of Beijing is home to thousands of poor people, many of them migrants who have lived there for generations. A new proposal is being considered to enforce personal rights that are guaranteed in the Constitution, starting with the protection of such downtrodden migrant workers in the cities.

  PHOTO: NY TIMES

  "We hope that by taking up this smaller, concrete issue, we can advance the cause of constitutional rights in general," said Xu Zhiyong, 30, a member of the law faculty at Telecommunications University in Beijing and an author of the petition.

  Their argument has struck a deep chord at a time when China is becoming more enmeshed with the global community, national leaders pay homage to the "rule of law" and the public is increasingly fed up with arbitrary police powers.

  By pushing for incremental legal progress, the petitioners exemplify the "change from within" approach that many younger intellectuals here now see as China's most promising, and perhaps only, path to political change.

  Some call their appeal naive in a country where the Constitution has been, as one law professor put it, "a collection of slogans," purportedly offering freedoms of speech, the press and association along with Mao Zedong Thought. Only last week, four young intellectuals who tried to organize discussions of democracy were handed long prison terms.

  Yet, in the often paradoxical legal environment of China today, proposals that are tied to widely acknowledged social problems, that do not challenge one-party rule and that are couched in narrow terms of legal reform can be debated more openly than ever before.

  Scholars like Xu do not deride an earlier generation whose grander yearnings brought euphoria and then disaster in 1989, as the army crushed mass pro-democracy demonstrations at Tiananmen Square.

  "I have respect for those who raised human rights issues in the past," he said. "But now we hope to work in a constructive way within the space afforded by the legal system. Concrete but gradual change -- I think that's what most Chinese people want."

  Xu is spokesman for the three petitioners; his colleagues are Teng Biao and Yu Jiang. All are 30, hold doctorates from the prestigious Beijing University Law School and now teach at other universities.

  More prominent legal scholars have lent their support, with five of them sending a similar petition to the legislature challenging the legal basis of migrant detentions.

  That second statement, whose drafters include He Weifang, the editor of the Beijing University Law Journal, said the detention system had brought repeated cases of "gross abuse of power and violation of human rights."

  Few Chinese would dispute that the system controlling rural migrants is rife with abuse. Each year, hundreds of thousands of migrants are picked up, fined, sent home or forced to work under a special set of rules that are outside normal criminal procedures. The system even has its own detention centers, which partly rely on fines and forced labor to cover their costs.

  The system was established by administrative fiat in 1982 and has never been enshrined in law by the legislature. As practiced, it violates several constitutional guarantees, including one requiring adherence to judicial procedures when people are detained.

  "Sometimes it doesn't even matter whether you have the right permits to be here or not," Wu said. "They'll take away your cart -- they'll take away the tools you need to make a living -- and that's not right."

  Wu said he was detained last year, when he was stopped and found not to be carrying a temporary resident's permit. He said he had left his at home.

  In truth, many of the 3 million migrants who live and work in the Beijing area do not have the required residency, employment and home-town permits. Everyone, including the police, knows this.

  Wu said he was taken to a large center north of Beijing, where he was not allowed to make a telephone call and was fed no more than steamed bread twice a day. Within a few days, he was put on a train bound for his home province, where relatives were contacted and secured his release for US$24. Detainees who could not muster the fine, he said, had to spend a week in custody doing farm work.

  As soon as he scraped together the train fare, Wu returned to Beijing, resuming the same work, in plain view of any authorities who cared to notice.

  Wu's experience was a common result of a system that, in its patent unfairness, reflects the contradictory attitudes that cities hold toward rural migrants.

  The menial work the migrants do, from construction to garbage recycling, water delivery to vegetable sales, is vital to city life and the economy. Yet city officials say the residence restrictions are necessary to prevent the growth of slums, and residents like to blame migrants for crime and filth.

  "They need us, but they're afraid of us," Wu said of the Beijing authorities.
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