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.
TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.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 assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.
April 19, 2011
It has long been a societal consensus that we should be cracking down when there are dark forces present and evil acts are occurring—not only is this the consensus of Chinese society, but also the consensus of the international community. Therefore, over the years, there has been virtually no public sentiment that the triads should not be combated. There have only been individuals criticizing the illegal procedures during the process of the anti-crime campaign that have violated the fundamental rights of citizens through the use of “black methods” and are requiring a strict adherence to the law.
Nevertheless, some of our institutions and media have continued to create an imaginary enemy, as if many people are against the anti-crime campaign. As a result, leaders have constantly come forward to affirm the anti-crime campaign. Recently, leaders have come forward to emphasize that there is “no other recourse but to fight” evil or that if “we do not fight the triads, there will be social deterioration.” These words are no doubt correct, but are nothing more than repeating what the society already knows, and inevitably produces pointless associations in people.
In fact, in the legal and political realm, the real concern is another side of the “anti-crime” campaign that is relating to the phenomenon created by the use of “black methods”: 1) no leader has come out officially to denounce the use of these “black methods,” but from the way that it has been disclosed to the public, “black methods” are frequently used and in some cases, very serious; 2) while stressing and affirming the anti-crime campaign, no leader has stressed the need to adhere by the law; 3) no leader has pointed out that the use of “black methods” would have a serious negative impact upon the socialist legal system and hinder the process of building a socialist country governed by the rule of law; 4) the impression that the public obtains from the media and public bodies, as long as the anti-crime campaign is a success, it does not matter whether “black methods” are used.
Even though “anti-crime” and “black methods” use the same combination of characters in Chinese, if you swap the character order, then the meanings become completely different. Anti-crime is an act of justice, while the use of “black methods” is an illegal action that damages the socialist legal system. As such, the two must be clearly separated. Whenever and wherever, regardless of who, the need to embark upon an anti-crime campaign and its success cannot be a legitimization of and the rationale to conceal the illegality of the “black methods.” Of course, when the “black methods” phenomenon occurs, its rectification is all that is needed; therefore even if the phenomenon of “black methods” had occurred before, it would not be sufficient to obscure the performance of the antic-crime campaign.
Some people with common understand know that the anti-crime campaign must act in accordance with the law and that the law does not allow the illegal “black methods.” However, the Chinese society does not possess a strong awareness of the law. A general consensus has not been formed whether the anti-crime campaign should adhere to the law. The majority of the public and the officials are only concerned with the anti-crime campaign and ignore the phenomenon of “black methods.” This is a good reflection of how poor the inner quality of the nation has become. Leaders at the country’s highest level are the guides of the direction of social development and of the implementation of the Constitution and the laws. Therefore, they have a special moral responsibility to explicitly reject the “black methods” at the same that they affirm the anti-crime campaign.
By only affirming the anti-crime campaign without denying or reminding concerned parties to pay attention to the “black methods” is likely to encourage the tendency to illegally handle cases, torture and other serious violations of the basic civil rights. This tendency must be corrected.