Part IV—Zhiwei Tong (童之伟) Series: The state is obligated to provide equal protection for citizens’ religious beliefs

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.

The  Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistant, YiYang Cao for his able work in translating these essays.

 (Pix (c) Larry Catá Backer 2012)

Part IV—Zhiwei Tong (童之伟) Series:   The state is obligated to provide equal protection for citizens’ religious beliefs

http://libertyzw.fyfz.cn/art/1011016.htm

June 23, 2011

On freedom of religion, I am more concerned that the fundamental rights of equal protection, though of course, there is the issue of security. Equal protection of citizens’ freedom of religion is the premise of effective protection – when there is no equal protection, there is no way to even discuss the effective protection, let alone fully protection. I believe it is necessary to establish a consensus on the need for equal protections for freedom of religion. If there is a consensus, it will be much easier for officials and the public to communicate when dealing with matters relating to freedom of religion.

Speaking of seeking a consensus, we should start by analyzing our Constitution for its position on church and state relations. From the theoretical perspective of Marxism, it agrees with the implementation of separation of church and state in a socialist country, and does not agree with the establishment of a state religion or the lack of separation between church and state. At the legal level, China’s Constitution does not directly make provisions on church and state relations though from the relevant provision one can see the stand that the Constitution takes on the establishment of a state religion and on the lack of separation between church and state.

Article 36 of the Constitution provides that: “Citizens of the People’s Republic of China enjoy freedom of religion. / No state organs, public organizations or individual may compel citizens to believe or not in any religion, nor discriminate between religious and non-religious citizens. / The state protects normal religious activities. No person shall make use of religion to carry out activities that would disrupt public order, impair the health of citizens or interfere with the educational system of the state. / Religious bodies and religious affairs are not subject to any foreign interference.” From the above provisions of the Constitution itself, we still cannot see whether the Constitution sanctions a state religion or the lack of separation between church and states. However, there is a paragraph within Article 33 of the Constitution that says, “all citizens of the People's Republic of China are equal before the law.” From these provisions within the Constitution, the problem then answer becomes clear.

Taking Article 33 and 36 of the Constitution together, we should conclude that: the Chinese constitution would not only contradict the existence of a state religion or the lack of separation between church and state, but also require the equal treatment of its citizens regardless of their religious beliefs. Equal protection of citizens’ freedom of religion, requires the State to treat various religions without a hint of favoritism. Establishing a state religion or failing to separate the church and state, regardless of the country is bound to result in different levels of intimacy between the government and various religious groups; the opposite is true as well, if you have varying degrees of familiarity with different religions then it would inevitably result in the creation of a de facto state religion or a situation where the church and state are not separated. In both cases, the state would violate the Constitutional requirement of equal protection of freedom of religion. Because, the state’s one-sided support of a religion is bound to constitute discrimination against citizens of other religions, it would constitute infringement of citizens’ right to freedom of religion.

 (Pix (c) Larry Catá Backer 2012)

Based on the above findings, we should logically make another conclusion: the state should not support nor patronize any particular religion. This is a common practice of any contemporary secular country that is governed by the rule of law. Measured in accordance with this standard, there is a major problem with some practices in some parts of China. One example was the participation of many officials from the local and central government in the opening ceremony of the Guan Yin of the South Sea of Sanya in 2005. On that religious occasion, the principal leader of the State Bureau of Religious Affairs publicly said in a speech: “Buddhism in China is really great, a great country must protect great Buddhist traditions, and the great Buddhist traditions will certainly be advantageous to a great country!” At the time, some academics expressed doubts over the legitimacy of such a practice of using religion to legitimize a government. Since then, reports of similar events have continued without interruption. Enter the relevant search phrases into Baidu and you will find a lot on the subject. For example, on April 14, 2008, at the opening ceremony for Heming Shan’s Ancestral Heavenly Master statue saw leaders from the CPPCC National Committee, the State Bureau of Religious Affairs, the provincial government, the provincial Bureau of Religious Affairs, and party and government leaders from Chengdu attending the event to show their support and congratulations.

In this regard, the latest and most vivid demonstration occurred at Baoshan in Shanghai. According to reports, on the morning of January 1, 2011, Baoshan Temple held its 500th anniversary by rebuilding the statues of Buddha. Leaders from Shanghai Municipal People’s Congress Standing Overseas Chinese Ethnic and Religious Affairs Committee, Shanghai Ethnic and Religious Affairs Committee, Communist China, Baoshan District, the District People's Congress, District Political Consultative Conference, and district government authorities and agencies all attended the celebrations. A deputy director of the Shanghai Ethnic and Religious Affairs Committee also gave a speech, saying “I hope that party leadership and government departments in all districts and counties in future construction efforts can learn from the successful experience of Baoshan district so that when construction goes ahead at temples in other districts and counties we can all not only be good leaders, but good protectors as well.” It seems that the government and other public organizations of power are expressing significant support for certain religions.

We can say with some certainty that the involvement and support of national and other public authorities with a particular religion is not consistent with the law and spirit of the Constitution. In accordance with the Constitution, citizens have the freedom of religion and are equal before the law. Irrespective of creed or religion, all citizens should have the right to equal protection of the state. The state has the obligation of guaranteeing the freedom of religion and must not exhibit any favoritism and engage in any form of discrimination. In reality, state support for the activities of one religion, if it does not give equal support to the other religions, then it is a violation of the equal rights of citizens of other religions, undermining their freedom of religion. This truth cannot be ambiguous. According to the requirements of the above provisions of the Constitution, the state or those acting on behalf of the state or its public agencies should take the position that equal support be granted to activities of all religions, or no support for any religious activities are allowed ensuring state neutrality and equality between the religions.

  (Pix (c) Larry Catá Backer 2012)

If we take above provisions of the Constitution as a requirement for secularization, then the state only has one option: cease all participation and support for any religious activity and strive to remain neutral and equally apart from the various religions. In modern nations governed by rule of law, almost without an exception, follow this rule governing the relationship between church and state. Of course, there are often fuzzy boundaries and disputes. In general, it is pretty standard for the state and representatives of public authorities to not get directly involved in or support any religious activity. However, in order to maintain an equal relationship between the state and all religions is quite difficult and controversial.

For decades, the state and other national agencies have discriminated against the various religions, damaging the right of citizens to freedom of religion and equal protection before the Constitution. We have obviously witnessed a lot of state organs and leaders participating and support Buddhist religious activities, but we have almost never seen any state participation or support for Christianity and other religions. According to the Constitution, if state organs participate and support Buddhist activities, they must also participate and support in other religious activities as well.

In today’s seminar, Professor Guo Daohui talked about the constitutional principal of issues that has many teachable benefits. There are a couple of truths that can be explained further.

First, China must first enact legislation to protect fundamental rights such as freedom of religion. Given the rigorous enforcement of the statutory system of the country, if something is not written in the Constitution, then it is not enforceable. For many fundamental rights, even if it is written in the Constitution, it is treated as not being present. Moreover, even if fundamental rights are implemented within law, there is no guarantee that they will be effectively protected. Therefore, the development of a special law to protect religious freedoms and implement the relevant provisions of the Constitution is an absolute necessity.

Second, in order to protect the freedom of religion, the law should be able to take make certain restrictive provisions on the specific behavior of citizens exercising religious freedoms. However, these restrictions are conditional. Under normal circumstances, constitutional guarantees of fundamental rights can only be restricted by law and cannot be restricted by any form of regulations. If you can regulate, then it is tantamount to saying that even provisions of the Constitution approved by a two-thirds majority of the National People’s Congress can be arbitrarily denied by administrative organs or departments. This reasoning, in theory, is logical.

Legal restrictions on the fundamental rights of citizens ensure that everyone can fully enjoy their rights and freedoms. These rights should not limited for the sake of limiting rights and cannot deny or reduce a citizen’s basic rights for the for the purpose of restricting fundamental rights. Otherwise, it becomes a violation of the provisions and spirit of the Constitution.

Third, the law used to limit citizens’ fundamental rights cannot violate the provisions and spirit of the Constitution. If such is the case, then such a law should be determined invalid upon examination. In order to sincerely consider the Constitution, we cannot insult people’s intelligence and employ self-deception to deceive.

The Regulations on Religious Affairs that everyone is discussing is a set of administrative rules and regulations. If this set of regulations is a precursor to the enactment of laws regulating the behavior of government management of religious affairs, then there is no problem as it will have no impact upon citizens being able to enjoy their religious freedoms. However, if these regulations impose substantial restrictions upon a citizens’ freedom of religion, then we must consider the regulations’ constitutionality. This problem is rather complicated and requires a careful study of the situation.
 

What I want to say is that the freedom of religion question is something that can only be resolved by rational communication between the government and the people. If the government wants to ensure social stability, national unity and to prevent foreign interference, then citizens should give their understanding and support to resolving this issue. In addition, the Constitution provides that “religious bodies and religious affairs are not subject to any foreign interference.” Since this is a constitutional system, then we must adhere to that provision. On the other hand, in accordance with the Constitution, citizens enjoying freedom of religion must also enjoy ample space for religious worship. The government should be tolerant of citizens worshipping, cannot deliberately make things difficult for worshipers, cannot look for trouble when there is none, and must not do everything possible to disrupt proceedings. All democratic or rule of law governments have limited authority and control – the government cannot just regulate what they want to regulate, cannot just regulate in the way they want. Anything overdone will only backfire.

 (Pix (c) Larry Catá Backer 2012)

Part III—Zhiwei Tong (童之伟) Series: Perspective Study from Criminal Procedure Code to Modify Constitution (Part I)

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.

The  Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistant, YiYang Cao for his able work in translating these essays.

 (Pix (c) Larry Catá Backer 2012)

Part III—Zhiwei Tong (童之伟) Series: Perspective Study from Criminal Procedure Code to Modify Constitution (Part I) 
We lack the knowledge base to modify the criminal procedural law
http://libertyzw.fyfz.cn/art/1041773.htm

September 25, 2011

The draft of the People’s Republic of China Code of Criminal Procedure Amendment states: China’s current criminal procedural code was enacted in 1979 and amended in 1996 at the Fourth Session of the Eighth National People’s Congress.  The practice has proved that the design and overall configuration of authority of Chinese criminal procedure have on the whole been scientific and reasonable.  So far, incompatible problems have propped up only in some areas and it is these areas that improvement is necessary.

The reality is quite different, according to Professor Tong.  The current criminal procedure and the overall configuration of authority does not meet adhere to the spirit of seeking truth from facts, and as a result cannot correctly reflect the relevant aspects of the truth.  The reality shows that the handling of criminal cases and proceedings by Chinese courts, procuratorate and public security agencies have been very unscientific and unreasonable.  As a result, fundamental reforms should be made.  Unfortunately, the principal institution assigned to revise the Code of Criminal Procedure has failed to see these major drawbacks.  These drawbacks include:

1.     Too much police power granted and continually broadened beyond the framework of the Constitution and legal boundaries.

In the Constitution, the public security apparatus is only a departmental level entity, lower than the positions of the corresponding regional courts and procuratorates.  However, the reality is far different.  The political and party status of a head of a public security department is, in fact, above that of the president of a court and the head of the procuratorate.  This kind of situation is understood by all adult Chinese citizens and thus there is no need to enumerate the evidence.  We can see from the role of the public security apparatus in the handling of various disclosed criminal cases; from its role throughout the investigation process; from its role in the examination, prosecution and trial process; and from its role in the Chongqing anti-crime campaign and from the charade put on by the Beihai police department that a strong and unfettered public security apparatus is difficult to constrain.

In the world today, I do not know of any other country where a police department possesses as much authority and as capable of overpowering the authority of their counterparts in other departments to such a degree.  If you give me more time, I can find enough information to prove that:

a.     The drafting of the amendment of China’s Criminal Procedure Code and the legislative interpretation has largely been led by the police departments and its representatives.  Therefore, any legislative interpretation and changes reflect the hopes and wishes of the police departments.

b.     The phrase, “practice has proved that China’s Criminal Procedure Code and configuration of power is scientific and reasonable.”  This probably reflects the view of the police department.

A society and country governed by rule of law is incompatible with a police state or police community.

2.     The application of current Criminal Procedure Code over the past ten years has resulted in an extraordinary number of defendants have been unjustly sentenced to death.  This shows that the current focus of criminal procedure and authority is insufficient to protect the lives of citizens from illegal deprivation by organizations with public authority.

Over the last decade, an extraordinary number of defendants have been unjustly sentenced to death.  The common people have found out about the injustices within a number of sensational cases

a.     She Xianglin “wife murder” case

b.     the Zhao Zuohai “murder and dismemberment” case

c.     Niu Shubin “rape and murder” case

There are other cases that the author has verified one by one, written papers studying death penalty injustice cases, including:

a.     Li Yongcai’s “intentional homicide” case in Liaoning

b.     Li Huawei “intentional homicide” case in Liaoning

c.     Wu Hesheng “intentional homicide” case in Wuhan

d.     Du Peiwu “international homicide” case in Kunming

e.     Yao Jing and Yao Li sister and brother “intentional homicide” case in Henan

f.      Jiang Ziran “burglary and murder” case in Hunan

g.     Ai Xiaodong “murder and necrophilia” case in Hubei

h.     Wang Hongchou and seven others “breaking and entering, robbery” case in Jilin

i.      Shi Yansheng “international homicide, robbery” case in Heilongjiang

j.      Yang Zhijie “murder using explosives” case in Hebei

k.     Chen Guoqing, He Guoqiang and 4 others “robbery and murder” case in Hebei

l.      Zhao Fenrong “murder using poison” case in Shaanxi 

In October 2010, I bookmarked a list published by Lin Zhaoliang on the internet called Injustices Exposed by the Media in the Last Few Years.  The list was later deleted, but on September 24, 2011, I found the list on the joneswell blog.  The list was populated by defendants and suspects facing unjust charges that could result in the death penalty.  Many of those on the list included individuals that I had not discovered I wrote my paper.  The list included cases that I had seen in the last few years and cases that had not been reported.  However, all of these cases are readily accessible online.  From my research, though I have not had the time to examine whether the details of the case is consistent with the reported characterization, I can almost completely confirm that all of these miscarriages of justice are listed truthfully.  These cases include:

a.     Teng Xingshan, an 18 year old boy from Hunan was  found guilty and executed for murder and dismemberment; 10 years after his death, the real murderer was captured

b.     Yang Mingying of Hunan’s 10-year imprisonment for murder was overturned

c.     Huang Aibin of Hubei was sentenced to death for intentional homicide, but was released after 4 years

d.     Sun Shaohua of Jilin was charged with killing three people and burning their bodies; was released after serving 11 years

e.     After 15 years of imprisonment for rape, Xu Jibin of Hebei was cleared of his charges

f.      Charged with raping a young girl, Song Baomin of Hebei died in prison

g.     After 8 years of imprisonment for raping and murdering a young woman, Xu Dongchen of Hebei was released

h.     After suffering from 2 years of torture, Li Jiuming of Hebei was  cleared of an intentional homicide charge

i.      After 10 years of imprisonment for raping a female teacher, Meng Cunming of Hebei was acquitted and released

j.      Hao Jin’an of Henan was on death row for ten years for robbery and murder before being reprieved

k.     Zhang Congming from Henan was imprisoned for 6 years for robbery and murder before being acquitted

l.      Xu Jingxiang of Henan was imprisoned for 13 years for robbery and theft before being released

m.   Qin Yanhong of Henan was in custody for rape and murder of young woman for four years before acquittal

n.     Wang Haijun of Jilin was unjustly imprisoned for 19 years for murder before being acquitted

o.     Huang Yaquan and Huang Shengyu were imprisoned for 10 years for robbery before being acquitted

p.    Tu Jingxin of Jiangxi was on death row for 7 years for corruption before being acquitted

q.     Ye Lieyan of Jiangxi was acquitted and released from long-term detention on the charge of criminal explosion

r.      Chen Shijiang of Shandong was acquitted of intentional homicide after eight years of imprisonment

s.     Tan Junhu and Lan Yongkui of Guangxi were imprisoned for 4 years for robbery and murder before being acquitted

t.      Tong Limin of Chongqing was imprisoned for 4 years for raping, murdering, and mutilating the nanny before being acquitted

u.     Gao Jinfa of Shaanxi was on death row for three years for raping and murdering a young girl before being acquitted

v.     Li Jiedeng and four others of Sichuan were imprisoned for 8 years for intentional homicide before being acquitted

w.   Yang Yunzhong of Heilongjiang was wrongfully imprisoned for 7 years for intentional homicide before being acquitted

x.     Sun Wangang of Yunnan was on death row for 8 years for rape, murder, and dismemberment before being reprieved

y.    Chen Jinchang of Yunnan was on death row for two years for robbery and murder; was released after the real murderer was arrested

z.     Wang Shuhong of Yunnan was arrested for raping and murdering a prostitute; tortured while imprisoned, he was crippled by electric shocks

In general, most of these unjust cases involved homicide and initial guilty verdicts were overturned upon the discovery of the “actual murderer” or the alleged murder victim reappears. However, the likelihood of these two situations is not high.  As a result, it can be concluded that the number of miscarriages of justice is high not only in capital cases, but also in other criminal acts as well.

3.     Existing criminal procedure and configuration of authority is unable to constrain police from acting illegally, therefore is not enough to protect the safety and freedom of citizens from abuse of police power.

There are many local police departments that arbitrarily arrest and jail people, including incidences of mass arrests and arrest first and ask questions later all are rarely constrained, while the use of torture to force confessions has largely become universal.  In this regard, I believe that a Chinese adult citizen have seen and heard too many stories about the police.  From a longer term perspective, in the case of Mr. She Xianglin, it was not only that he was wrongfully arrested and given a suspended death sentence, but because his mother appealed, she was imprisoned for nine months, while his brother was imprisoned for forty-one days.  A fellow villager who gave evidence in support of Mr. She was also imprisoned for three months.  From such a case, we can see that the personal rights and freedoms of four individuals have been illegally infringed upon.  Taking a shorter term perspective, this is similar to the infamous “lump of feces” case in Chongqing, where in a clear miscarriage of justice, Mr. Fang Hong spent a year in a labor reeducation camp.  According to the Chongqing police department dealing with the case, Fang Hong’s son, wife and daughter “disappeared” after they were released.  Even now, no one knows if they had actually been released (though logically, they should have been released already).  Even individuals who hold a degree of international attention are arbitrarily arrested and deprived of their personal freedoms.  This article only speaks to a number of well-known cases.  The reality is that these kinds of cases occur almost daily and hourly.

In particular, the use of torture to force confessions or the use of torture to change confessions (an illegal practice largely extinct in other countries and regions under rule of law) and barbarous methods of interrogation have become largely universal in many regions of the country.  The Chinese use of torture to force confessions is not only a topic of concern to international human rights organizations, but also a daily topic of concern amongst its citizens.  People can see from a variety of media sources that behind almost every instance of injustice, wrongful prosecution or cases that result in public discontent all there is one or more stories about torture.  The 1.3 billion citizens of China all but ignore media reports of individuals brought up on torture under Chinese criminal law.  In fact, they treat those instances where charges of torture are brought up as nothing more than faking for the public.  We are supposed to protect citizens’ personal rights and freedoms and protect the innocent from prosecution, and yet we can neither curb the universalization of torture nor ensure that those individuals who commit torture are prosecuted.  From this point alone, we can clearly see that the design of the current Criminal Procedural Code is neither “scientific” nor “reasonable.”

4.     Existing criminal procedure and configuration of authority does not effectively protect the courts to allow it to exercise judicial power independently and does not allow for mutual constraint to be exercised between the courts, procuratorate and public security agencies that handle criminal cases.

The Constitution provides that the court, the procuratorate and the public security departments shall divide responsibilities, coordinate, and mutually constrain each other when handling criminal cases in order to ensure the correct and effective enforcement of the laws.  Over the last several years, people have only seen these three working together in a complementary fashion to ensure that a suspect or a defendant is convicted.  There is very little to no mutual restraint.  As a result, the court basically almost never finds for the defendant.  In addition, when the procuratorate handles its own cases, it has the authority to decide to arrest the suspect.  This kind of arrangement is in direct violation of the tripartite arrangement of mutual restraint.  Although the reasons for these conditions are complex, at least it gives the people a reason to believe that the existing Criminal Procedure Code is unable to curb these kinds of unconstitutional actions from occurring.

Because of the lack of mutual restraint, the out of control use of technical investigation and analysis has created a situation where no one is safe and secure.  For years, China’s approach has been to rely upon the police departments to conduct their investigations entirely based on its own needs and without court or procuratorate approval.  Intellectuals all know that China’s police departments have the power to unilaterally conduct all kinds of surveillance activities.  And because of this lack of constraints, there are no time limits on how long a police department can conduct its investigation into the crimes committed by a suspect.  In order to ensure the guilt of a suspect or defendant, even when the case has reached the courts, the police departments has the power to conduct and engage in virtually unlimited supplementary investigations.  Furthermore, this lack of mutual restraint leads to an imbalance of power between the prosecution and the defense with judges accustomed to standing on the side of the prosecution when considering issues.

5.     Other problems

In addition to the aforementioned four major issues, the existing Criminal Procedure Code and configuration of authority has other severe drawbacks, which are briefly described here:

a.     The behavior of the long-term deprivation of citizens’ personal freedom by assigning them to labor reeducation camps, a form of punishment that is not included and is not adjustable by the existing Criminal Procedure Code.  From a constitutional perspective, this kind of behavior has long been criticized as allowing the existence of a form of punishment that is incompatible with building a country governed by rule of law and the basic constitutional requirements of respecting and protecting human rights.  By itself, the existence of such a measure shows that the existing Criminal Procedure Code and configuration of authority is outdated, a throwback to the pre-capitalist era.  The personal rights and freedoms of Chinese citizens should be protected by a judicial process.

b.     Shuanggui system should be included in the judicial process, as party members should have the right to equal protection under the Criminal Procedure Code.  Currently, however, existing criminal procedure is not designed to protect these individuals’ personal rights and freedoms.

c.     Lawyers often cannot or do not dare to provide adequate legal defense to those being criminally prosecuted.  The number of lawyers willing to serve as a defense attorney is decreasing as they face difficulties from multiple fronts.  Criminal defense lawyers are not offered the safety guarantees that would enable them to seriously investigate and collect evidence.  Attempts to meet their clients and witnesses are often with obstacles.  Worse, they do not play a part in the punishment phase of a trial.  This is a situation that the entire society has witnessed over the last decade.

d.     There are no guarantees for a public trial.  The more attention a case receives from the people and the community, and the more serious the case, the more likely that the trial will not be public.  A public trial is one of the best ways of ensuring oversight over how courts, procuratorates and public security departments handle criminal cases.  In practice, the behavior over the past decade has rendered this constitutional provision bogus.

Ultimately, the agencies and officials drafting the Code of Criminal Procedure Amendment are seriously divorced from reality.  Only those with courage to stand up and face these inadequacies will be able to restrain them.  Only through truthful and factual examination will it be possible to amend the Criminal Procedure Code.

 (Pix (c) Larry Catá Backer 2008)

Part II—Zhiwei Tong (童之伟) Series: The necessity of complete change of governance from rule of man to rule of law

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.

The  Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistant, YiYang Cao for his able work in translating these essays.

 (Pix (c) Larry Catá Backer 2012)

Part II—Zhiwei Tong (童之伟) Series: The necessity of complete change of governance from rule of man to rule of law 

http://www.libertyzw.fyfz.cn/art/1042312.htm

October 18, 2011

Thirty years ago, facing the trampling of civil rights and devastation of democratic and legal systems by the Cultural Revolution, the Third Plenary Session of the 11th CPC Central Committee proposed: “the need to strengthen the socialist legal system; institutionalize democratic principles and legal framework; ensure that these kinds of institutions and legal instruments possesses stability, continuity and enormous authority, so that the law is abided and followed, and strictly enforced and that all violators are prosecuted.”  How do you do this?  The Third Plenary Session of the 11th CPC Central Committee proposed two requirements to the building of the legal system: first, to “place the legislative work of creating the legal framework on the agenda of the National People’s Congress and its Standing Committee”; second, to “maintain the independence of the procuratorate and judicial organs; to be faithful to the laws and institutions, faithful to the interests of the people, faithful to the truth; to ensure the equality of each person before the law, and not allow any person special privileges before the law.” (11th CPC Central Committee Third PlenarySession Report, see Selected Important Documents since the Third Plenary, People’s Publishing House, 1982 Edition, page 11.)  By 2010, the socialist legal system with Chinese characteristics has basically been formed, fulfilling the first requirement put forward by the party.  Now, the national focus should shift to second proposed requirement, namely the construction of a judicial system capable of an effective and practical implementation of the law.

That year, the reason that the Third Plenary Session of the 11th CPC Central Committee specified that judicial organs must maintain their independence; be faithful to the laws and institutions, faithful to the interests of the people, faithful to the truth, and ensure the equality of each person before the law” was a direct result of the painful experiences of the Cultural Revolution and the inappropriate behavior exhibited by the courts and procuratorates.  To rectify the serious issue of the “rule of man” in the judicial system, the Third Plenary Session of the 11th CPC Central Committee prescribed the maintenance of the independence of the procuratorate and judicial organs as the cure.  The abovementioned judicial organs refer specifically to the courts.  For the convenience of study, we will only discuss the “maintenance of proper independence” of the courts.  Of course, the procuratorate’s independence must also be maintained.  However, the procuratorate is not the organization tasked with resolving disputes.  As a result, how the question of how to maintain its independence and how its framework differs from the courts will be the subject of a different discussion.

Allowing for an independent judiciary is the recipe to heal the problem of the “rule of man” in the political and legal systems.  However, in the thirty years since the Third Plenary Session of the 11th Central Committee proposed this requirement, the development of China’s political and legal systems has not fully taken the prescribed medicine.  As a result, even today, there are situations where when dealing with cases of “concern” to local party committees, party secretaries or politics and law committee secretaries, the judiciary often acts as a tool to carry the will of these individuals.  In the process of handling such cases, when the current power configuration system creates a difference between the requirements of judicial organs in the laws, institutions, interests of the people, the truth and the willingness of those in power,

From our Constitution, from the perspective of the law as the embodiment of unity between the party stance and the national will, when a local party committee stand or the will of an individual leader is in conflict with the party stance and national will, the judiciary can only choose to be loyal to the former at the expense of the latter—some places have seen party secretaries, politics and law committee secretaries and other organizations and individuals with the ability to influence the local judicial process and administration and manifest the “rule of man” into the judicial system.  These situations are incompatible and contrary to the “rule of law” that is clearly defined within the Chinese Constitution and the Constitution of the CPC and the objective of building a socialist state governed by the rule of law.

In order to cure the shortcomings of the “rule of man” in the Chinese judicial system, the requirement that judicial independence be maintained must be adhered to.  With the CPC as the ruling party and as a party that upholds a high degree of rationality, the party is entirely capable of instituting political reform so that the judicial system will maintain its independence, remain faithful to the laws and institutions, faithful to the interests of the people, faithful to the truth and uphold the equality before the law is the basic characteristic of the “rule of law.”  The need to maintain the independence of the judiciary does not mean that it needs to be independent of the party.  And of course, like any good medicine, there will be challenges to its implementation.  But for the health of the state, the medicine needs to be taken.