BY Sherab Nyima

Sherab Nyima is answering questions put uo by reports.

  According to The Oxford Companion to Law, human rights (or known as Fundamental Freedom) are the rights which require to be maintained or sometimes to be set forth that should be recognized and protected from the perspective of law, so that every individual achieves his or her fullest and freest development in terms of individuality, spirituality, morality and independence in other aspects. As some rights, they are considered to some results of inborn individual reason and free will, instead of what are merely endowed by essential laws and thus can be deprived of or annulled.?This definition describes the relationship between human rights and laws, that is, laws should serve to recognize and guarantee human rights. In other words, laws are the solidified and explicitly manifested requirements of human beings for their intrinsic dignity and rights of equality.

  Based on this very definition, this essay researches the issues of human rights in Tibet, with a focus on the relationship between laws and human rights guarantee.

  I. Corpus Juris in Old Tibet and Its Characteristics

  Following the Buddhist principles of the Ten Meritorious Acts, the local reign headed by Byang-chub Rgyal-mtshan during the Yuan Dynasty constituted the Fifteen-article Code. This code had been observed until the reign of Phang-mo Gru-pa. Then, the Sixteen-article Code was set down at the early 17th century, the late Ming Dynasty. It was instituted under the sponsorship of Karma btsan-skyong dbang-po after he took the local power in Tibet, which involved military, criminal, civil, financial, productive and living affairs of the Tibetans. In the early Qing Dynasty, the 5th Dalai Lama presided to adjust and amend the Sixteen-article Code, finalizing it as the Thirteen-article Code which came to function during the reigns of all generations of Dalai Lamas from then on.

  These codes in the old Tibet were characterized as the following:

  1. It Defied the Fundamental Dignity of Mass Tibetan People as Human Beings

  "Until the first half of the 20th century, Tibet was still a feudal serfdom-slavery society which mixed both politics and religions together, and was even darker and more backward than the mid-age Europe. Both monastic and mundane serf-slave owners, who accounted for less than 5% of the whole population, controlled the personal freedom of serfs and slaves, who made up of  more than 95% of populace."Neither the serfs nor the slaves in enormous amounts in Tibet had any independent personalities; merely as the appendix of their owners, they had no dignities. In legal provisions, they were treated as horses in terms of their status and values. For example, the Rule of Corporal Punishment for Felonies in  Article 6 of the Sixteen-article Code explicitly provided that "Those who kill people or loot horses at any time shall be sentenced to a corporal punishment."Similarly, the Rule of Corporal Punishment for Felonies in Article 4 of the Thirteen-article Code also articulated that those who "kill people or steal horses"should be sentenced to a corporal punishment. Meanwhile, both the Thirteen-article Code and the Sixteen-article Code recognized the provision in the Fifteen-article Code that the life of a vagrant beggar, a blacksmith, a butcher, a woman or someone like this who was incidentally killed could be compensated with one single piece of grass rope. In this case, how could one have his dignity?

 2. It Flagrantly Maintained Privilege and Inequality among People

  Firstly, it explicitly stipulated inequality among people. The Sixteen-article Code specified a strict hierarchy instead of the equality among human beings called for by the modern human rights theories. "People are labeled as the classes of the superior, the middle and the inferior, and each class is further divided in the same way."The superior among the superiors were "btsan-po (kings),"which points to the kings of Tibet; the middle among the superiors were chieftains who had more than 300 servants, governmental chiefs at forts, monastic masters and so forth, the inferior among the superiors were sprul-sku (reincarnated Buddhas) at a seminary level, ordinary monks, would-be governmental official of noble birth, and officials who had more than 100 servants. The superior among the middle were safeguards at the service of a governmental official of noble birth, chamberlain monks at a monistic seminary, disciplinarian monks and so on, the middle among the middle were those who transported supplies, forages and weapons as well as monks in a small monastery; the inferior among the middle were mundane people of noble birth. The superior among the inferiors were single free persons, logistic workers at the government and butchers; the middle among the inferior were blacksmiths or beggars who had their own domains, and the inferior among the inferiors were vagrant blacksmiths, butchers and beggars. In particular, the Thirteen-article Code unambiguously ranged women into the inferior among the inferiors, together with vagrant beggars, blacksmiths and butchers. The 3rd article in the Thirteen-article Code went even further in prescribing to "arrest those who argue against people of higher statuses".

  Secondly, people of various ranks received protection accordingly, i.e., people of a higher rank enjoyed better legal protection. Both the injured and the injurers would be treated differently where people of different ranks were wounded. As it was prescribed in the 10th article of the Sixteen-article Code, namely, the Rule of Punishment for Wounds, "The old code in the ancient times also recorded that 'The bleeding of the superior is much worthier that of the inferior.'So, injuries committed by the superior and the inferior are dealt with in various ways because the values are different. Where an ordinary person wounds an official, the limbs of the injurer shall be broken in light of the condition of the injury. Between a master and his servant, however, the master would be free of any other obligation expect the cure of the wound provided he injures the servant by mistake, and the master will bear no obligations at all if the wounds are caused by his intentional beats."

As for the killing or murdering of people at different ranks, the financial compensations for victims'lives were different, too. Both the 9th article in the Sixteen-article Code and the 7th article in the Thirteen-article Code involved contents of the same essence, that is, the compensations for killed lives decreased rank by rank from the superior among the superior to the inferior to the inferior. For a king, who was the most valued, the price of his life accounted for the value of all creatures and properties; when a Yaz king was killed by Huoer people, the price would be the same amount of gold as the weight of his body; when a king from lower Gesar was killed by a believer of Danma cult, the price of his life would be too valuable to compensate; the life of the middle among the superior was priced as 300 to 400 liang (1/20 kilograms) gold; that of the inferior among the superior 200 liang gold, the superior among the middle 140-150 liang gold, the middle among the middle 50, 60 or 70 liang gold, the inferior among the middle 30-40 liang gold, the superior among the inferior 30 liang gold, the middle among the inferior 20 liang, and the inferior among the inferiors 10-15 liang gold.

  In addition, where properties of people of different ranks were stolen, the standards of punishment for thieves also varied in accordance with the ranks of victims.

  3. The Penal System Was Extremely Brutal

  Here we quote the clear provision of the 6th article in the Sixteen-article Code, which said, "Corporal punishments such as the gouging out of eyes, the cutting off of knees, tongues, or limbs, being thrown down cliffs, slaughter, and so forth, should be exercised for those who have committed five deadly sins, those who have robbed a Buddhist master of higher rank, monks or Tibetan kings of their property, those who have severely damaged the reputation of the government, those who have poisoned others, those who have played one off against another, those who have killed people or looted horses at any time; or in a peaceful time, those who have plundered, those who have carried weapons to commit violence, those who have framed up any civil rebellions; or those who have broken the laws anyhow. All the violators should severely be punished in accordance with the extent of their crimes in case anyone else follows their examples. Where many people rebels, the principal should be drowned in water."This provision has not only clearly shown how cruel the penal system was at that time, but also that these penal punishments were mainly applied on serfs and slaves who were supposed to have done harms towards the benefits of the serf-slave owners.

  "Simply from the perspective of cruelty of the penal provision in the Sixteen-article Code, we can find no other comparable laws both in the history and the present all over the world. The Sixteen-article Code involved many extremely brutal punishments which damaged people's five sense organs and limbs. These punishments had not only caused unbearable sufferings in the processes of execution. Once having been rendered such punishments, the receivers would thus lose their abilities to work and live, suffering desperately all life. The cruelty of the Sixteen-article Code depended on its class attributes as well as such several aspects: (1) The feudal serfhood-slavery institution, which embraced a tradition that a severe penal system should be applied for a society out of disorder and thus tried to maintain and solidify its dominance with cruel punishment; (2) The influence of backwards juridical practices in the tradition of Tibetan people, some of which originated from equal revenges; (3) The extreme defiance over human rights, i.e., a perspective that saw both serfs and slaves as some private property or speaking animals which could be slaughtered at will."

4. It Coerced Religious Faith

The Article 3 in the Sixteen-article Code started as such, "Any local official dispatched under the decree from a king should reject the vice of selfishness and pursue the practices of public affairs, going all out with devotions to the cause initiated by the chief ministers of the government or the ruling lamas of generations. He shall be committed to serving and embracing Buddhism, without converting to other religions or sects."The Rule of Kings as a Mirror of the 1st Article in the Thirteen-article Code contained a similar provision, "Anyone who holds a public office should go out to devote himself to the causes of the local chiefs and ruling lamas of all generations to practice Buddhism, without conversion to any other sects or paganism."In other words, the freedom of religious faith, a concept of human right for the modern people, was not adopted by the local laws in the ancient Tibet, and the Tibetan Buddhism was the only religion that should be embraced and practiced, and no other types of religions should be worshiped or believed in.

  To summarize, Tibet took a feudal serfhood-slavery system before the founding of the People's Republic of China, and naturally its legal institution did not get rid of the corresponding generality in terms of human rights protection. Due to the absent fundamental right of personality, the mass serfs and slaves had no right to survive, let alone any political rights or any other ones.

  II. Initiation and Features of Legislation for Guaranteeing Human Rights in Tibet in the Early PRC

  This period began from 1951 when the People's Army of China entered Tibet peacefully and ended in 1958 when the democratic reform was initiated in Tibet. From the perceptive of human rights protection, the legislation during this period was mainly characterized as the following.

  1. It Left the Previous Political and Legal Systems Untouched in Tibet, Not Changing a Lot in Terms of Human Rights Guarantee

  After a negotiation, the Central People's Government and the plenipotentiary representative from the contemporary local Tibetan government came to The Agreement on the Peaceful Liberation of Tibet between the Central People's Government and the Tibetan Local Government. In particular, the 4th, 5th, 6th, 7th and 10th articles provided that the central government did not change the existing political system in Tibet; that the central government maintained the previous status, functions and rights of Dalai Lama and Panchen Erdini; that the central government protected lamaseries and did not alter monastic incomes; and that the central government did not coerce various reform items in Tibet, while the Tibetan local government should exercise reforms for its own. As any reforms are required by the mass, the relevant issues should be solved in negotiation with Tibetan leaders.

 2. A Principal Framework for Regional Minority Autonomy in Tibet

  The 3rd article in the Seventeen-point Agreement prescribed, "In light of the ethical minority policy under the common creed of the Chinese People's Political Consultative Conference, Tibetan people are entitled to perform regional minority autonomy with the uniform leadership by the Central People's Government."In accordance with The Resolution of the State Council on Setting up a Preparatory Committee for the Tibet Autonomous Region in 1955, a Preparatory Committee for the Tibet Autonomous Region was set up, which was an "institution resembling a regime, under the leadership of the State Council"during the transitional period before the founding of the Tibet Autonomous Region. This committee carried out its work accordingly in reference to its functions and responsibility.

  3. A Prescript to Improve the Status-quo of Tibetan Human Rights Was Made in Terms of Economy, Society and Culture

  The 9th and 10th articles in the Seventeen-point Agreement dictated to, in light of the reality in Tibet, developing the language, letters and schooling of the Tibetans step by step and developing the agriculture, stock raising, industry, commercial business progressively so as to improve the standards of people's living.

  Based on this, some specific provisions were further made in A Decision of the State Council on the Matters to Help Tibetan Local Authority with Constructions, with funds allocated and technical personnel dispatched by the central government to help construction in Tibet.

The Resolution by the Standing Committee of the Preparatory Committee for the Tibet Autonomous Region to Vigorously Train Cadres of Tibetan Ethnic Group articulated the source of cadres of Tibetan Minority: except being selected and elevated from the various existing institutions such as the cabinets of Dalai Lamas, the cabinets of Panchen Erdini, the authorities at Changdu and other sides, as well as officials of noble birth and young intellectuals, it also involved "civilians, workers, peasants, herdsmen and so on".

In addition, there had been more regulatory documents concerning the improvement of the existing human rights conditions in Tibet such as The Solution of the Standing Committee of the Preparatory Committee for the Tibet Autonomous Region to Exempt Tibetan Staff Workers Involved in Public Institutional Work (Including Logistic Works, the Same Below) and Students (Including Students from Colleges, Middle Schools and Primary Schools, the Same Below) from Substitute Taxes for Personal Labor.

  III. The Holistic Development Period and Characterized Legislation for Guaranteeing Human Rights in Tibet after the Founding of PRC

  This period refers to the time from 1959 when Tibet began its democratic reform to 1984 when the Law of the Peoples Republic of China on Regional Ethnic Autonomy was enacted. The legislation during this period was distinctive in terms of human rights protection in the following aspects.

  1. The Rights to Personal Freedom of Previous Serfs and Slaves Were Recognized

  Several legal documents in 1959 such as The Resolution of the Preparatory Committee for the Tibet Autonomous Region on Democratic Reform stressed to "totally abolish the feudal slavery,""annual personal attachment and liberate serfs and slaves,""abrogate all the feudal privileges of slave owners and their agents,""revoke all the feudal privileges of monastic authorities (including appointing officials, administrating municipal affairs, setting up private courts, prisons, penal punishment, the confiscation of properties, the exile of people, the privately keeping of weapons, the intervention both over civil and penal suit, the intervention over freedom of marriage, the intervention of cultural and educational causes, the sabotage of production, and so forth), feudal possession, feudal exploitation, personal enslavement, the coercing of mundane masses into lama monks or nuns."

2. Tibetan People Have Acquired Their Fundamental Rights of Survival

In The Resolution of the Preparatory Committee for the Tibet Autonomous Region to Annul the Feudal Land Ownership of Serf-slave Owners and Exercise Land Ownership of Peasants passed on September 21, 1959 in the 3rd plenary session of the Preparatory Committee for the Tibet Autonomous Region, it articulated that before the democratic reform in Tibet, "serfs, who accounted for 90% of the whole Tibetan population, had no ownership of lands and were personally attached to the serf-slave owners; and slaves, 5% of the population, were totally possessed by serf-slave owners and their agents both in terms of their physical bodies and their labor achievements. Relying on their feudal privileges and land possession, the serf-slave owners and their agents exploited serfs and slaves brutally, living an extremely extravagant life; in contrast, however, the mass serfs and slaves toiled through years, staying in a poorer living condition even than hard-working horses or oxen."And one important mission of the democratic reform in Tibet was simply to "annul the land ownership of feudal serf-slave owners (in particular, feudal government, nobles and monastic authorities), and exercise the land ownership of peasants."In The Resolution of the Preparatory Committee for the Tibet Autonomous Region on How to Reform Land Ownership System in Tibet, the 4th and 11th articles prescribed that "Policies to redeem and confiscate are respectively carried out for the land and other productive materials possessed by the serf-slave owners and their agents in the Tibetan area,"and that "Township peasant associations take over all the redeemed or confiscated lands and other productive materials except those that are possessed by the state in light of this document, and under the principle to satisfy the requirement of serfs and slaves most in need to the utmost extent and properly take care of the interests of serfs at a medium level (including better-off serfs), the distribution should be performed in a just and legitimate way. An equal share of land shall be endowed to each serf-slave owner or his agent."Such system of land distribution is not only the most fundamental and important measure to guarantee the human rights of all the Tibetan people, but also brings the universality of guaranteed subjects to the highest extent in the concept of modern human rights.

  3. The Mass Tibetan People Have Gained Their Fundamental Political Rights

  The 7th Article in the Rules of Election for the People's  Representative Conferences at Levels in the Tibet Autonomous Region (draft) in 1962 stipulated that "Any citizen of the PRC at or above 18 years civilian who live within the autonomous region, regardless ethical or racial status, genders, occupations, social sources, religious faiths, the levels of education, property conditions, terms of dwelling, shall be entitled with suffrage or eligibility."The election results publicized in the Decision of the Election Council for the Tibet Autonomous Region on the List of Representatives for the 1st People's Representative Congress of Tibet Autonomous Region in 1965 was as such: "301 representatives have been elected for the 1st Autonomous Region People's  Congress in total, among whom are 226 people of Tibetan, 59 of Han ethical group, 5 of Menba, 4 of Hui, 3 of Luoba, one of Naxi, one of Nu, and two representatives from other sides; in particular, there are 44 women representatives.""This bottom-up election has completely changed the class basis and organizational structure for the political dominance in the Tibetan society, enabling the mass to participate in and discuss political affairs both actively and with awareness of a citizen, bringing an opportunity for enormous numbers of poor serfs and slaves to be involved in public affairs."At the same time, it indicated that right to political involvement has become democratic in Tibet.

  4. The Other Fundamental Rights And Freedom of a Citizen Have Been Established for the Tibetan People

  In The Resolution of the Preparatory Committee for the Tibet Autonomous Region on How to Reform Land Ownership System in Tibet promulgated in 1959, the 3rd article stipulated to "annul all the feudal privileges of the serf-slave owners and their agents. And the fundamental rights of a citizen shall be protected in light of the Constitution of PRC."

Apart from the right to personal freedom, the right to equality, the right to suffrage and eligibility and the right of association, the other fundamental rights of a citizen stipulated in the subsequent Constitution of PRC respectively promulgated and implemented in 1975, 1978 and 1982 include the freedom of speech, press, assembly, processions and demonstrations, the freedom of religious faiths, the right that the dignity of personality are not infringed, the right that private residences are not encroached, the freedom of communications, the rights of privacy in communications, the right of criticism, advices, appeal, complaints and impeachment, the right of work, the right of recreation, the right of social security, the right of acquiring material aids, the right of receiving education, and the right of culture. In addition, people of ethical minority have also enjoyed the freedom to maintain or abandon their own customs and practices, to make use of and develop their own languages and letters, and so forth.

  5. The Right of Autonomy in Minority Areas Has Been Established and Constantly Developed

  As early as in The Resolution of the 2nd National People's Congress of PRC on Tibetan Issues on April 28, 1959, it has pointed out that "At the local level in Tibet, regional minority autonomy will be exercised under the uniform leadership of the Central People's Government and with the sponsorship of the mass and patriots of all circles. A prosperous new socialist Tibet will be built up in reliance on the brotherly unity and mutual help between the working people of various ethical groups. This is an unalterable guideline for the People's Republic of China."In September 1965, the Tibet Autonomous Region was formally founded.

  On May 31, 1984, the Law of the People's Republic of China on Regional Ethnic Autonomy was promulgated, and it has been the first time to employ national laws to affirm the autonomy in each minority autonomous region (including Tibet Autonomous Region) in such a concentrated and holistic way. Specifically, these rights of autonomy include the autonomy of legislation, the autonomy of languages and letters, the autonomy of personnel administration, the autonomy of establishment of public security forces, the autonomy of economic and trade management, the autonomy of resources and environment management, the autonomy of finance and tax administration, the autonomy of education, science, culture, sanitation and health care administration. The promulgation of this law also marks the formal establishment of legal status of minority autonomous regions, and it has been a milestone for the legislation of human rights guarantee for the ethical minorities in China.

  IV. The Legislation for Guaranteeing Human Rights in Tibet Since 1978 Has Entered a New Period of Holism and Systemization

  After the reform and opening to the outside world (1978), especially since 1985, the legislation for guaranteeing human rights in Tibet has come into a new period of holism and systemization. Such holism and systemization are mainly manifested as the following.

  1. The Local Legislation in Tibet Has Been Accelerated, and the Lawmaking for Guaranteeing Human Rights in Tibet Has Further Been Enriched And Specifically Oriented

  The Constitution of PRC, the Legislation Law of PRC and the Law of Regional Ethnic Autonomy have all endowed the right of legislation to the minority autonomous regions, including Tibet. In 1985, the Procedure for Constituting Local Laws and Regulations in the Tibet Autonomous Regions was approved and implemented by the Standing Committee of the 4th People's Congress in 1985 and amended by the same institution in 1990. According to this procedure, the Tibetan legislative institutions have promulgated a series of local laws and regulations that both fit into the reality in Tibet and match up with the relevant national laws and rules.

  Merely within its 5-year term, the Standing Committee of the 7th People's Congress of the Tibet Autonomous Region examined and deliberated 57 pieces of laws, regulations and resolutions related to legal issues, which have not only boosted the economic and social development in Tibet, but also contributed to the progress of human rights right there. For example, it proposed the 4th plenary session of the 7th People's Congress to examine, discuss and pass the Statutes for Legislation in Tibet Autonomous Region, promulgated the Ways to Implement the Law of Representatives and some other regulations, and amended the Rules of Procedure in Representative Conferences, the Ways for the Election of Rural Villagers Committees, and so forth; in reference to the strategy of development in West China and the new situation that China has joined the WTO, it advised the 5th session of the 7th People's Congress of the Tibet Autonomous Region to make a decision on the amendment of the Several Regulations for Learning, Using and Developing Tibetan Language in the Tibetan Autonomous Region (Trial), and so on.

  2. The Amendment of the Law of Minority Regional Autonomy in 2001 Has Further Improved the Unique System of Minority Regional Autonomy in China That Guarantees the Rights of Minorities From All Aspects, So as to Better Regulate and Guarantee the Various Rights of the Minorities and the Regions Where They Live

  3. The 4th Amendment of the 1982 Constitution in 2004 Marked That the Line "The State Respect and Guarantee Human Rights"Was Written into the Fundamental Law of the State. By then, to Guarantee Human Rights Has Become a Principal Basis for a Variety of Laws, Administrative Statutes, Local Statutes, Regulations, Legislative Interpretation and Juridical Interpretation

  So to speak, the systemization of legislation for guaranteeing human rights in Tibet has mainly been manifested through the affirmation of the fundamental law, the further improvement of basic laws, the diversification of legislative forms, and the universality of legislative contents.

Summary

All in all, we can easily draw the following conclusions from the development in the history: firstly, the legislation for guaranteeing human rights after the founding of PRC has witnessed a radical progress in comparison with that before the establishment of PRC; secondly, the legislation for guaranteeing human rights in Tibet after the founding of PRC has primarily been systemized; thirdly, the construction of the basic legislative system for guaranteeing human rights in Tibet after the founding of PRC has been very fast and efficient; and fourthly, the legislative contents for guaranteeing human rights in Tibet after the founding of PRC have not only implied the specific situation in China, but matched up with an international standards. And they are not anything groundless.

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The author is Vice President and Professor of Central University for Nationalities, Vice -chairman of Study of Chinese History.