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.
November 15, 2011
In the spring of 2011, the Fourth Session of the Eleventh National People’s Congress declared that a socialist legal system with Chinese characteristics had been formed. Although this conclusion was made not without objections from the legal community, it is an undeniable fact that China’s laws have already been systemized, which is a noteworthy development.
However, even after the Fourth Session of the Eleventh National People’s Congress has already ended for more than half a year, the law enforcement situation is not optimistic. Of the issues, the most worrying is the public authorities acting as they will, not following the laws, failing to enforce the laws properly, violating laws with impunity, and even law enforcement breaking the law has become more and more prevalent. This has resulted in situations that are not difficult to take care of by existing constitution and law. However, methods have been employed that are outside of the law and thus have garnered significant attention and made it difficult for those in the legal profession and field to understand and explain. Since spring, these kinds of cases are concentrated in housing demolitions, petitions and complaints, investigations of criminal cases, trials, defense attorneys providing counsel, etc., and often involve public authorities and their officials using violence, detention and torture to illegally deprive or restrict the citizens’ rights to personal freedoms, as well as other violations of basic civil rights. In the last several months, for example, Beihai, Guangxi officials’ response to defensive attorneys trying to perform their legal responsibilities or Linyi, Shandong where public authorities and shady individuals continue to block the release of a blind citizen who has already finished serving his sentence. These examples are very typical. This kind of behavior of not adhering to the law, the momentum leading to the indiscriminate disposal of the development of real discourse is a cause for concern and it has reached the stage where a course change or containment has become necessary.
Now that the status of the implementation of the legal status has looked so defeated, public authorities should bear the brunt of the responsibility. In general, law enforcement can be divided into two aspects, compliance with the law and application of the law. Both public authorities and citizens must fulfill their obligations to comply with the law. Application of the law (including administrative enforcement and judicial application), on the other hand, is the exclusive responsibility of the statutory public authorities. When citizens and individuals violate the law, the relevant state organs can use public force to impose compliance or lawfully punish. Therefore, as long as the public authorities are strong enough, citizens and individuals violating the law will generally not seriously undermine and cannot inflict damage upon the legal order. But things are different for public authorities. As controllers of the national power of coercion, if one of the organs, departments or institutions is in violation of the law, citizens and individuals cannot directly force compliance or impose sanctions. To let the public authorities and its officials abide by the law, there are a number of essential, fundamental conditions.
That law has been constrained by authority has been the main behavior of history, at the same time it is the civilized system or the history of the progress of the rule of law. Unlimited power, absolute power and unchecked power directly results in behavior by the principal powers that are not legally binding. This is precisely the reason why the political and legal systems have fallen behind. The extent to which the behavior of the principal powers is bound by the law measures the progress of the political and legal system. How to constrain and legally bind the behavior of the principal powers is a basic problem of democratic revolution and Constitution coming into being. If this problem is not solved, then the democratic revolution cannot be considered successful. As a result, you have a Constitution that only means that you have a legal document or a paper-based text called the Constitution, and not have the power to constrain and the right of effectively protecting constitutional content.
Facing a variety of public power principals not complying even when laws exist, even chaotic situations of applying the law to violate the law, we hear complaints that are often regarding: not acting in accordance with the law, why do we need the law, and what’s the use of implementing and amending the law to be so perfect? Although these are cynical and one-sided remarks, they do, however, reflect the enormous harm done to the life of the law of the failure of public authorities to abide by the law.
We want to govern the country according to the law and build a socialist country governed by rule of law. These are important goals for both the present and the future. In order to fulfill these goals, we must strive to eliminate this lack of compliance of the law, law enforcement acting illegally and other chaotic behavior. How are we to effectively eliminate such chaos? To be honest, in the process of elimination, legal scholars can at the most act in the role of a doctor, checking on the “patient” and prescribing medicine. If the patient does not eat the medicine, the doctor cannot take the medicine on behalf of the patient. As for what happens when you take the medicine, whether the disease can be cured is another matter entirely. However, even with the same diseases, if other people take one kind of medicine to be cured, then there shouldn’t be problems if we take the same medicine as well. Of course, our physical and living environment is different from others. As a result, the dose of medication, the time, frequency and the timespan of continued use of the medication may have to differ as well.
Like the treatment of any other diseases, we can make a distinction between treating the symptoms and treating the root cause when treating for the elimination of non-compliance with the law, law enforcement acting illegally and other chaotic behavior like the treatment of any other diseases. If you just focus on treating the symptoms, we should consider concocting two medicines. The first medicine is called using power to constrain power. Power constraints may be a very wide range, far from being as simple as saying separation of powers because only within national institutions, to horizontal power constraints between organs of state power of the same level and vertical power constraints between organs of state power and other organs both below and above. The powers constraints of various state organs at all levels, the ruling party and other entities determining policy is more complex and diverse. In terms of the specific form of power constraint used, to effectively eliminate non-compliance of the law, law enforcement acting illegally and other chaotic behavior, there are no definite rules. However, the form of the power constraint must remain the same, in that it must be able to ensure a situation where all authorities and powers are constrained, and must ensure that there are no absolute powers that are free from external constraints of the situation.
In order to treat the symptoms, we need to concoct another medicine, competitive elections for the representative bodies and the principal officials of state organs. The characteristics of competitive elections allow voters to select a representative or leader that they support and allow citizens to themselves step forward as a potential candidate. Competitive elections are not an end to themselves. They are only meant to ensure voters or citizens that have a degree of control over the actions of members of representative bodies, leaders of state organs at all levels and other “public servants.” Perhaps, to speak more precisely, competitive elections are a means for citizens to restrict power. As long as it is able to allow different authorities and powers to constrain one another and use power to constrain power, then it would naturally eliminate the existence of absolute and unrestricted power, non-compliance with the law, law enforcement acting illegally and other chaotic behavior. When some of the diseases are gone, then the clinical manifestations of these diseases will cease to exist as well.
With regards to the non-compliance with the law, law enforcement acting illegally and other chaotic behavior, if we only pursue a cure of the symptoms and not cure the root cause, then it is not enough to simply take the two remedies listed above. We must also focus on and eradicate the cause of the disease. To also tackle the root cause, at the very least, requires the addition of two fundamental measures:
1. Eliminate from the theoretical and ideological consciousness the idea of absolute power, establish the concept that the powers of the ruling party and state power have to be bound and limited by law, and ensure that this concept is implemented into the legal system. China’s current Constitution and the Constitution of the Communist Party of China make clear the power of the ruling party, as well as the constitutional and legal constraints upon state power. But this kind of content and spirit is largely excluded from political discourse and official ideology. There are no legal instruments like “party” or “relationship between the ruling party and state organs” that implements this content and spirit.
2. Establish an effective constitutional supervisory system (i.e. a system to determine constitutionality) and a system to determine legality of legislation and laws. These two systems are the requirements of our current Constitution, but in the thirty-one years of the current constitutional implementation, they have primarily remained as text in the Constitution and it in the relevant laws as they could not be implemented effectively. As it has never been effectively implemented, the constitutional supervisory authority provided for in the Constitution has so far never publicly reviewed any law and the constitutionality of any provision of any act, and certainly, of course, has not made any appropriate decisions in this regard.
To curb and correct non-compliance with the law, law enforcement acting illegally and other chaotic behavior, China should work hard in treating both the symptoms and the root causes. From the content point of view, this is the fundamental requirement that demands public authorities lead by example in accordance with the law.