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 10, 2011
In the last month, I have read an article written by Vice President Xi Jinping’s entitled “The Key is to Implement,” published in “Seeking Truth,” and studied President Hu Jintao’s discourse on the need to promote the comprehensive enhancement administration according to the law, the need to promote the consciousness and initiative of the socialist rule of law, and the need to accelerate the building of a socialist country governed by rule of law. I very much agree with Vice President Xi in criticizing some local officials for unscrupulously embarking upon personal vanity projects, and particularly support the judgment of President Hu that we need to accelerate the building of a socialist country governed by rule of law. Let me give some thoughts on China’s current situation.
In a capitalist system where multiple parties rotate rule and the powers are separated under a system of checks and balances, politicians are most concerned about how many votes they can receive during an election. They will do anything in order to gain votes. Of course, there is a bottom line of what kind of behavior they can exhibit. That line is to avoid doing something illegal to cause them to lose eligibility as a candidate and to avoid committing a violation of public morality that would result in voter abandonment. Under the People’s Congress system, local politicians are most concerned about their administrative performance. For many years, there have been quite a few individuals who would do anything to ensure a good track record. That such exhibited behavior is in line with political life, by itself is understandable.
The crux of the problem is that for our society to form effective political and legal mechanisms, we must draw a clear line to such achievement-seeking behavior. We must let them know that breaking this line will exit them from the political system, not only ensuring that the detriments will outweigh the benefits, but also making it very likely that they will lose everything.
Over the last few years, key officials going to extreme lengths to meet performance standards has been a common occurrence. I went back and read over newspapers and magazines over the last few years. The unscrupulous means that local leaders have utilized in order to achieve performance standards include: violent eviction and demolition of homes; exaggerate growth in local GDP; vigorously pursuing vanity projects; extend working hours beyond state mandate and reduce the time allocated to workers to rest; instigate statistical fraud; unnecessary red tape; using money like dirt for extraneous events, conferences, and to create man-made landscapes, etc. Some of these accomplishments are probably doing things over and over again, exaggerated and aggressive to meet the high developmental targets. For example, the People’s Daily in January 2011 disclosed that in recent years, in locales with slow development, the use of slogans such as “Grand Development,” “Great Leap,” “Great Opening Up,” “Great Research,” “Great Changes” and others have been quite prevalent to the point that China has 655 cities “walking to the world” and 183 cities wanting to build themselves into “international metropolises.” Some local leaders, in order to highlight their achievements even go as far as to engage in campaign-style law enforcement, engage judicial, procuratorate and police to work together under one room to engage in the widespread denial of the legitimate procedural rights of the accused.
It can be said that these problems all stems from the anxiety of these local leaders to attain certain political achievements. As a result, we can say that the policies of local governance are driven by these anxieties.
Anxiety-based, performance driven policy can be divided into various types: the wasting money and manpower type, the fanatical pursuit of GDP growth type, the grandiose type, the attractive to the eye type, the catering to curry favor type, the embrace the people to acquire a false reputation type and the break the law to manufacture results, among others. Each of these anxiety-based, performance driven policy behaviors will cause widespread harm to various aspects of society. Take the example of the fanatical pursuit of GDP. It has been estimated that the roundabout process of demolishing and construction of buildings has reduced the lifespan of buildings to about 30 years, much shorter than design. It is easy to see just how much annual damage to the wealth of the society that the fanatical pursuit of GDP causes.
In this country where the tradition of democratic rule of law is weak and the legacy of autocratic rule of man is deep, anxiety-based, performance driven illegal policy is a highly contagious political disease. Any attempt to highlight the effect of illegal policy behavior without curbs will only rapidly spread the problem. For example in late July 2010, a city in Shandong’s municipal committee adopted the slogan, “five plus two, white plus black.” The slogan was part of an arrangement to add Saturday as a normal workday for a number of municipal government departments, illegally adding an extra day to the limits and regulations on how many days a civil servant could work. The example set with the 6 day, 48 hour work week has been copied this year by a city in Shanxi that changed the national mandated work week of 5 days, 40 hours to 6 days, 60 hours. Fortunately, this competition to extend the work hours of employees in violation of national law received widespread media and community attention. And in a timely manner, such a practice was halted.
According to the Central Authorities, the 2011 local party committees to focus on changing sessions, while later on the 18th National Congress of the Communist Party of China will be held. This means that in the future cadre and personnel changes will be more frequent. At this critical period, local party and government officials know that the most important factor in determining their political futures is their performance. Some individuals will undoubtedly experience anxiety over the promotion or retention requirements, thereby increasing the possibility of illegal policies being implemented.
Achievements are the result of steadfast actions. However, because of the universality of opportunists, there are no shortages of local officials who are opportunistically looking at ways to pad their résumés. From their point of view, political achievements are like any other achievements – both can be the product of hard work and both can be attained through “skill” or through opportunity. More importantly, what is considered as political achievement (and which also influences their approach) is to be thought highly of by their superiors and to be recognized by the “masses.” As a result, in their eyes, whether to say “skillful” or opportunistic acquisition of such political achievement is very important and essential part of rallying hype. As the Chinese government and Chinese people’s awareness of the rule of law, awareness of the protection of rights and awareness of the rules are all weak, there are a lot of institutional loopholes available to be opportunistic exploited. In recent years, many local officials have exploited and taken advantage of these loopholes. The basic way that they have exploited these vulnerabilities has been to try to figure out the intent and psychology of the “masses,” taking risks by breaking the Constitution and the law, make large and small actions to cater to the intent and psychology of the “masses,” and lastly trumpet their successes.
People all know that such practices are only a new form of disguising official corruption and as such deserve attention and vigilance. I am very pleased at the Central Authority has also noticed this problem. The following statement by Vice President Xi expresses this sentiment very well: “Some leading cadres have badly grasped the implementation process, when an issue arises with an improper view of political achievement, it often a case of personal ideology at work. Leading cadres at all levels must firmly establish a correct view on political achievement and to correctly grasp the implementation process, they must diligently work towards the betterment of the party and the benefit of the people rather than raising their own image and paving the way for their own promotion. To grasp of the implementation process requires practical work and to seek practical results rather than wasting money in the pursuit of shallow, flashy ‘image projects.’ By focusing the grasp of the implementation process on reality and on the long-term will lay a solid foundation rather than blindly comparing like mice and to drain the pond to get at the fish.”
Regardless of where and when, local officials using illegal policies will have high-sounding excuses to justify their behavior. But no excuse is sufficient to justify the offense committed. When local officials illegally abuse their power, the most convenient excuses are to use the “needs of the masses,” the “lack of objections by the masses,” the “satisfaction of the masses” and others. As for who are, the quantity of, how to calculate the satisfaction of, and whether the actions of these officials represent the “masses” are issues that are usually scoffed at by those in power, as all they need is something that they can use as an excuse.
It is said that although the policy behavior of some officials have been illegal, their motivations have been good. That is definitely not the case! This statement is not only probably not realistic, but also a grave mistake. Motivation is a kind of psychological activity that no one can see and can only be understood by the individual themselves. However, life experience tells us that any official position is not derived from the ballot but from higher level officials, there are major differences in the claim that the illegal policies are motivated for the people than the actual real motivations to the point that they have absolutely nothing to do with each other. When they violently evict and demolish houses, they claim that they are developing the local economy, benefiting the people, while their real motives are to opportunistically seek promotion. When they embark on campaign-style law enforcement, deprive individuals of their procedural rights on a grand scale, engage in acts of torture and create injustices, they state that they have embarked on an anti-crime campaign to protect the peace for “masses,” while the real motivation is still trying to attain political achievements and to seek promotion.
Numerous facts of experience tells us that local official seek political achievements in ways that are comparable to capital and the pursuit of profit. In order for capital to “attain 100% of the profits is willing to trample over all human laws.” Similarly, it is political achievements and not votes that determine the political future of local officials. There will be some officials who, in the pursuit of political achievements, will “dare to trample on all human laws.” The experience of human societal governance has shown that, in the political field, we can only assume that human nature is evil in order to attain good governance results. Therefore, when considering the illegal governance behavior of officials, and ponder their motives, we should first point to the anxiety over political achievements. For example, while it may seem high-minded when local officials arbitrarily extended the working hours of civil servants, the reality is that it is an illegal policy action that is a result of anxiety and the need to accrue political achievements.
In general, illegal governance behavior is the way local officials seek political achievements in an inventive, desperate way. Our public officials are in a fierce competition over promotions and combined with the indifference of society towards the rule of law creates an unhealthy environment. In this environment, some officials are feigning one thing while doing another, using high-minded language to mask illegal policies. This behavior is often not only not condemned by those above and below, but also considered the opposite by kind-hearted individuals as winning a reputation of having the courage to try to reform, ambitious, innovative and diligently hardworking. Therefore, illegal governance behavior is very attractive for political opportunists. However, on the other hand, China has an awareness of the rule of law and decent leaders, after all, are increasing. Advanced individuals in the public know that if opportunists come to power that they would pose a potential threat to the normal life and basic rights of citizens. Therefore, the risks assumed by those officials embarking upon an anxiety-based, performance driven illegal governance behavior is growing.
We should also see that risking illegal governance behavior has created a form of unfair competition in official circles. Under normal circumstances, local officials have expectations about the requirements of promotion or retention and can therefore achieve those objectives. In contemporary China, it mainly depends upon political achievement. Local officials embarking upon illegal governance behavior are like 100m hurdlers on the competitive stage who commit a false start (and not penalized for it). Indeed, the illegal governance behaviors and results are enough for these individuals to seize an advantage. Of course, if those refereeing the process strictly enforced the law, they may well be fined for taking a head start. Therefore, for local officials, adopting illegal governance behavior is similar to gambling.
From the situation in some of China’s locales, anxiety-based performance driven illegal governance behavior has already become quite serious and constitutes a real threat to the rule of law process and the establishment of the legal system. China’s political and legal systems could originally be used to correct and punish illegal governance behavior, but unfortunately, in some cases, still cannot fully function. Therefore, China must compensate for the lack of official political and legal oversight mechanisms and social oversight and society’s most powerful form of supervision, the media, to timely and unceremoniously reveal to the public of specific illegal governance behavior, anxiety over political achievements and any internal relations between officials that are illegal and immoral.