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.
September 1, 2011
1. Does the “public security” mentioned in the current Constitution an “authority” or a “department”?
With regards to the “public security organs,” the above article wrote that: Dai Yuzhong, a member of the National People’s Congress Internal and Judicial Affairs Committee, said that in the draft, clause 33, paragraph 3, last 4 characters referring to the ‘judicial organ’ was unclear as to what specific organ was being referred to. In his analysis, there is an inconsistency between the understanding and presentation of the theory versus actual practice. Some say that the judicial organs are the courts and the procuratorates. Others believe that under a broad definition of judicial organs includes the public security organs. “Dai Yuzhong continues his analysis by pointing that from clause 135 of the Constitution, the courts, procuratorate and public security organs are the ones that deal with criminal proceedings. Under most circumstances, the courts, procuratorate and public security organs handle most issues regarding the Criminal Procedure Code. ‘Here the judicial organs are identified as the court, the procuratorate and the public security organs.’ He suggests that this should be adjusted.” In addition, Professor Chen Guangzhong also expressed: “In the Criminal Procedure Code, this is the first time that has occurred that public security organs can be considered as part of the judicial system. Public security organs are considered as part of the government. Worldwide, public security organs or police departments are not included within the judiciary.”
Undoubtedly, there is a clear practical significance in determining the extension of the scope of the concept of the “judicial organs.”
Sifa is a foreign concept, usually translated from judicial or judicature; sifaquan, sifajiguan are also translated from judicial power and judicial branch. The original intent of the term that is translated as “judicial” from foreign languages are trial, judgment and its meaning does absolutely does not include the police or public security, as well as not including China’s sense of prosecutorial power and the state organs for legal supervision. Because of China’s procuratorate is very different from the prosecution and investigation in other countries, we will leave the thorny issue of whether it is a judicial organ aside for future discussion. However, whether the “public security organs” should be classified as part of the judiciary within the Criminal Procedure Code is a question that should be resolved promptly. It should be noted that the judiciary in China is not a constitutional concept. The extension of the concept of the judiciary whether to include the public security organs can only be resolved in accordance with the spirit of the Constitution and jurisprudence. And, we should start to solve this problem by considering whether the “public security” should be as an “organ,” and speaking of “organ,” what sense of the word.
The current Constitution describes the organization under the State Council as “organs.” To describe the “public security” as an organ, would require also describing the “auditors” the same way. The current Constitution uses the concept of “public security organ” three times. Article 37, paragraph 2 of the Constitution provides: “Any citizen, without the People’s Procuratorate approval or decision or the decision of the People’s Court, and only the act of the public security organ, is immune from arrest.” Article 40 of the Constitution provides: “Aside from the needs of national security or to track down the perpetrator of a criminal offense, the public security organ and the procuratorate must adhere by the law when inspecting communications. No organization or individual may, on any grounds, infringe upon the citizens’ freedom and privacy of correspondence.” Article 135 of the Constitution provides: “In the handling of criminal cases, the People’s Court, the People’s Procuratorate and the public security organs shall divide responsibilities, coordinate and mutually restrain, in order to ensure the correct and effective enforcement of the law.” As a result, the concept of “auditing organ” of articles 91 and 108 of the current Constitution is based upon the separate provisions within article 91 and 109: “The State Council shall establish auditing organs,” “auditing organs, under the leadership of the Premier, must in accordance with the law independently exercise the power of supervision through auditing without interference of other administrative organs, social groups and individuals”; “The local government from the county level and above shall establish auditing organs. Local auditing organs at various levels shall in accordance with the law independently exercise their power of supervision through auditing and must be responsible to the local governments and auditing organs one level above.”
It is worth noting that at the same time, the current Constitution also frequently uses language similar to, and in the more general case will include “public security” and “auditing,” the terms “department” or “working department” to all organizations subordinate to the state administrative organs. Under special circumstances, they also are referred to as “administrative agencies.” Article 90 of the current Constitution provides: “Ministers of the State Council and Directors of each Committee are responsible for the work of their respective department; convene and preside over ministerial meetings or committee meetings, committee service conference, and discuss and decide on major issues in their department. Each Ministry and Committee, in accordance with the laws and administrative regulations of the State Council must decide and command and within its authority, issue orders, directive and regulations.” In another example, Article 108 of the Constitution provides: “Leaders of local governments at the county level or above have authority to alter or annual inappropriate decisions made by their respective working departments and the local government one level down.” Articles 89 and 91 of the Constitution both have a similar sense of the concept of “administrative agency” and “fiscal financial institutions.” The Constitution’s use of terms such as “department,” “working department” and “administrative agency” refers to the same object previous provision of the phrase “authority,” a subordinate organization of the state administrative organs. They have become virtually synonymous.
People can see that, as a result, “public security” and “auditing” and other organizations under the State Council have the differing titles of “organ” and “department.” It is also alleged that organizations under the state administrative organs sometimes use the term “organ” and sometimes use the term “department” to show that the logical relationships between some important concepts within the Constitution have not been straightened out. Taking into account that the Constitution is more important than the various concepts of “national institutions” and “national organs,” the different and varying ways of expressing the organizations underneath the State Council logically causes confusion in the understanding and implementation of the Constitution.
2. The term “public security organ” is a historical product of improper interpretation
From its constitutional standing, the term “organ” as denoted within the Constitution has issues relating to whether it is an organ or not and its constitutionality. The existing organs mentioned in the Constitution generally refer to the heading of chapter 3, “national organs.” The national organs are constituent units of national institutions and include organs of state power, state administrative bodies, national judicial organs and state procuratorates. Academically, these organs can be divided into two levels: central authority organs and local organs of state authority. The President and the Central Military Commission are also state organs and are a part of the central authority organs. With state organs of the same level, the status of organs of state power is higher than that of other state organs. The constitutional status of national organs have already been determined, some of which are institution of state power that have been directly or indirectly generated by the voters; others of which are directly generated by, responsible to and supervised by the people’s congresses at the same level.
In the current Constitution, the term “organ” in rare cases refers to a subordinate organization of the state administrative organs. A search on the internet shows that the current Constitution uses the term “public security organ” three times, the term “auditing organ” five times, and with regards to the meaning of the “auditing organ” uses once the term, “other administrative organs.” In our national institutions, in addition to the organs of state power, the constitutional statuses of other state organs are equal. But without a doubt, although the Constitution sometimes refers to the subordinate entities of the state administrative organs as organs, however the constitutional statuses of these entities are one level below that of organs. Therefore, these “organs” are only subordinate entities within the organization of the “national organs” and supposed to be, under the Constitution, treated like other constituent bodies of the State Council, and be referred to as “departments.”
Because of cognition of individuals seeking to amend the Constitution towards history, there is an obvious theoretical and logical disconnect in the concepts of “public security organ” and “auditing organ,” as well as others within the current Constitution. It can be said that the term, “public security organ,” has become something that historical constitutional amenders as the product or result of cognitive errors. At the same time, it is also a result of habitual usage. To clearly talk about this problem, we have to start from the 1950s and the 1954 Constitution.
The term “public security organs” first appeared in the 1950s within the binding normative documents. In that period, including a fairly long period before and after the promulgation of the 1954 Constitution, the policies and laws of the central authority was inseparable. The terms, “public security organs” and “police departments,” were often used interchangeably with no definite rules.
Looking at the 1954 Constitution itself, it does not appear refer to the subordinate organizations of the organs of state administration or other state organs as “organs.” “Public security,” for example, only appears once in paragraph 3 of Article 70 of this Constitution, stipulating that the autonomous regions have the right “to organize local public security forces in accordance with the country’s military system.” The framers of the 1954 Constitution had not made the cognitive error expressed in the term “public security organ.”
The use of the term, “public security organ,” in the current Constitution is a result of the cognitive errors made in the 1975 amendment. The 1975 Constitution abolished the regulations in the 1954 Constitution relating to the procuratorate. Paragraph 3 of Article 25 and paragraph 2 of Article 28 of this Constitution provides: “The authority of the procuratorate shall be exercised by the public security organs at all levels”; “no citizen without the approval of the people’s court or the public security organs are immune to arrest.” In this way, the people amending the 1954 Constitution and drafting the 1975 Constitution placed the “public security” as a subordinate organization of the state administrative organs and referred to it as an “organ,” and had it formally written into the new Constitution. This is how the current situation has resulted and the reason for perhaps because the amenders were only using a common term that they were familiar with to or perhaps it is because they believe that once the authority of one state organ is given to an organ that it itself becomes an organ. The term “public security organ” is a result of cognitive errors made during historical constitutional amendments.
The 1978 Constitution followed the above practice of the 1975 Constitution. Paragraph 2 of Article 47 provides: “Any citizen, without the People’s Procuratorate approval or decision or the decision of the People’s Court, and only the act of the public security organ, is immune from arrest.” As a result, “public security” in the 1978 Constitution is also an “organ” and not a “department.”
The 1982 Constitution continued from the 1975 Constitution by keeping the term “public security organ” unchanged. Likely affected by the impact of the term, from the positioning of the “public security organs,” the 1982 Constitution newly set the auditing organization under the state administrative organs also as an “organ.” The Constitution also uses to the term, “other administrative organs,” to refer to the other administrative departments within the state administrative organs. Those individuals amending the Constitution at the time should have taken into account the simple truth that subordinate entities of the state administrative organs should not also be referred to as organs and should have referred to the eight total entities below the state administrative organs as “departments.” This would have smoothed out the organizational relationship and hierarchy. In addition, Article 73 of the Constitution stipulates that when the National People’s Congress is in session, the members of the National People’s Congress Standing Committee, are entitled to the authority to question the State Council or any department and committee within the State Council and “the questioned organ must answer.” Here the organ should be modified to refer to organ or department. The next round of constitutional amendments should consider this idea to rationalize the relationship between these two concepts.
3. To deal with the “public security organs” and related concepts requires grasping the main points
In order for the amendment process of the Criminal Procedure Code to address the concerns put forward by Professor Chen and Committee Member Dai regarding the relationship between the “public security organ” and the concepts of the “court,” the “procuratorate” and “judicial organs,” the key is to understand the basis for the term, “public security organ,” and to grasp the following points:
a. Looking at the provisions of the existing Constitution, the “public security,” “auditing” and other entities underneath the State Council may be called public security organs and auditing organs and also may be called public security departments and auditing departments. Both titles have constitutional basis. Referring to them as public security organs and auditing organs is based on the constitutional provisions that contain these two terms. Referring to them as public security departments and auditing departments are based upon Article 90, 108 and others of the previous Constitution. These provisions refer to subordinate entities of the state administrative organs as “departments” or “working departments.” “Public security” and “auditing” are both one of these “departments.”
b. Rationalizing from the perspective of the concept, the “public security organs,” “auditing organs” and other entities subordinate to the state administrative organs are best referred to as “public security departments” and “auditing departments.” In the Constitution, the concept of what is on top of China’s political organization is the “national institutions,” followed by the “national organs.” Below that are the “departments,” “working departments” and “organs.” For conceptual clarity, referring to this third level entity as a “department” would be the most appropriate, while referring to the entity as an “organ” would make it very unclear. The practice of referring to both state administrative organs and its subordinate entities as organs would be tantamount to saying that the state administrative organs can be divided into even more administrative organs. This would make the concepts difficult to understand and easily confused, and would make the logical relationship between the different concepts difficult to rationalize.
c. Rationalizing the needs of constitutional order, “public security organs,” “auditing organ,” etc. should be referred to as “public security departments” and “auditing departments.” There are constitutional rank differences between the national judicial organ, procuratorate and other departments within the administrative organs. To refer to subordinate entities of state administrative organs as “organs” would blur and even completely hide the difference in level. For example, on the one hand, Article 135 of the Constitution provides that “the People’s Court and People’s Procuratorate and public security organs” are side by side, while on the other hand, the Constitution already provides that the People’s Court, People’s Procuratorate are the judicial organs of the state and the state organs charged with legal supervision. Placing these two organs alongside the “public security organs” would eliminate the differences in constitutional level. Because, in the case of a low standard of teaching of the Constitution, even if it is a citizen with a law degree, they may not know the difference between the “state” prefix used in the previous Constitution and the organs that in the previous Constitution that did not have the “state” prefix. The above formulation of the Constitution has an impact upon the reality of constitutional order: it gives the impression that the courts, procuratorates and public security possess equal constitutional status, causing people to confuse the precedence of the “public security organs” over that of the administrative district or the courts and the procuratorates when the reverse is actually true.
d. In the activities created by the law, including the amendment process of the Criminal Procedure Law, the subordinate entities of state administrative organs should all be referred to as “departments” and should not be described as “organs.” This technical principle is fully applicable to the relationship with the elimination of the “public security organs” and related concepts within the amendment process of the Criminal Procedure Code. Because once the subordinate entities of state administrative organs are with constitutional basis described as “organs” and “departments,” the legislative must determine to which carries greater weight. In doing so, they must act in accordance to whichever action is most conducive to promoting spirit of the Constitution to implement how legislation is applicable to the Constitution. To use the concept of “public security departments” would help both the party and the public to correctly understand the relevant provisions of the Constitution and therefore, the most conducive way of promoting the full implementation of the Constitution. Consequently, for the National People’s Congress and its Standing Committee to formulate and revise laws, including the amendment of the Criminal Procedure Code, requires avoiding the concepts of “public security organs” and “auditing organs,” and using the concepts of “public security departments” and “auditing departments.”
e. According to the provisions of the Constitution, the entities subordinate to the state administrative organs responsible for “public security,” whether it is referred to as “public security organs” or as “public security departments,” cannot be legislatively classified as part of the “judiciary,” and can only be classified as “state administrative entities.” This is not only because of what Professor Chen Guangzhong said, “In the world, there is no public security or police department that is included in the judicial process.” More importantly, it is because of Articles 85 and 105 of the Constitution that clearly defines the nature of state organs (of which public security departments belong) as “state administrative entities.” At the same time, in accordance with the provisions of Articles 85, 89, 105 and 107 of the Constitution, the difference between the China’s Central Authority and local public security departments is the difference between the “highest state administrative organ” and the subordinate entity of a “local state administrative organ of any level.”
Unfortunately, there has been very few constitutional law scholars involved in the development, explanation and amendment of the Criminal Procedure Code. This is the same with the current amendments. The draft of the Criminal Procedure Code has not been announced, no organized attempt have been made to seek the views of constitutional law scholars, even though many such scholars are eager to amend this set of laws for the good. This situation should change, not only to amend the Criminal Procedure Code, but also to the development or amendment of other laws as well.