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 assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.
Published on this website 2011-11-15
(This article was first published on First Economics and Finance Daily on 15th Nov 2011; there were some adjustments then , the following text is the full version)
In the spring of 2011, the fourth session of the eleventh National People's Congress declared that the Chinese socialist legal system has been established. Although the legal academia is not without objection to this conclusion, it is an undeniable reality that the laws in our country have already been comparatively systemized. This is a commendable development.
However, even if it has been more than six months after the end of the fourth session of the eleventh National People’s Congress, the situation of the implementation of law is not quite an optimistic one. The most worrying aspect is the conduct of the public authority institutions that act on their own, neglect laws, enforce laws without strength, ignore illegal behavior, to the extent that even the cases of law violation by the same executors of the law are being increasingly seen, giving birth to striking legal cases dealt with unlawful manners which could have been easily solved with the current Constitution or laws, making difficult for the legal professionals and scholars to understand or explain.
Since this spring, this type of examples are more frequently seen in the investigation, trial or defense of the housing demolition, petition, and criminal cases, and often involve the illegal use of violence by public authority institutions and its officials, illegal detention, torture, illegal deprivation or restriction of citizens' personal freedom, and other rather serious violations of basic civil rights. In the last couple of months, for example, the official response from the authorities of Beihai, Guangxi Province to some criminal defense lawyers and the behavior of the authorities and unidentified persons in Linyi, Shandong Province deliberately obstructing external visits to an ex-convict blind citizens, are very typical of such cases. The trend of this type of unlawful behavior and disposal is deteriorating to a very worrying point, it is now the time to make changes or impose efficient prohibitions.
Public authorities have to bear primary responsibility for the terrible situation of the current law enforcement. Generally speaking, the implementation of law can be divided into two aspects: compliance to the law and the application of law. It is duty for both public authorities and citizen to follow the law. The application of law (including administrative execution and judiciary application) instead is the specific duty of the statutory public institutions. When individual citizens break the law, the relevant national authorities can use public power to force the person to comply with the law, or impose sanctions on the person in accordance with the law. Therefore, as long as the public authority is strong enough, law violation of individual citizens cannot create serious damage to the legal order, it is even impossible for them to undermine the legal order for a continued period of time. Public authorities are of a different nature. They hold in their own hands the public power, if a department or agency violates the law, it is impossible for individual citizens to directly force them to comply with the law or sanction them. In order to make public authorities and their officials comply with the law, some conditions are essential.
The history of the law constraining the behavior public authorities is at the same time the history of institutional civilization or progress of the rule of law. If the power is unlimited, absolute and uncontrolled, then its behavior will not be controlled by the law, and that is exactly the main demonstration of backward political and legal systems. The level of constraints of law on the behavior of the public authority is equivalent to the level of the progress of the political and legal systems. How to make the public authority comply with the constraints of the law is the basic problem that the democratic revolution and the Constitution have to solve. If this problem cannot be well solved, then the democratic revolution cannot celebrate victory; the Constitution then can only be considered as a legal document with the name “Constitution” or some text on paper named “Constitution,” it will not have the real constitutional effect of legal constraints on authority and protection of rights.
When facing with all sorts of unlawful behaviors of many public authorities most complains we hear are: what is the need to establish the law and what is the meaning of adjusting them if they are not even followed? These are of course angry and partial comments, but they truly portray humongous damage of unlawful behavior of the public authority brought to our legal life.
If we want to run the country based on the rule of law, build a socialist country ruled by law, the important task now and in the future, is to put forth efforts to eliminate unlawful phenomena. How can we eliminate them? Honestly, in the process of eliminating these phenomena, jurists only play the role of medical doctors: do some check-ups, prescribe some medications, but if the patient is not willing to take the medication, then the doctors certainly cannot take the medicine for them. Whether the disease can be cure after taking the medicine is a different story. However, it should not be wrong to let the patients suffering the same kind of disease take the same kind of medicine. Of course, our body types and living environment are different from other people; therefore the time to take the medicine, the dosage or frequency should probably be different from them as well. This point is of course clear even without saying.
The elimination of unlawful phenomena is just like the cure to any disease, there’s the temporary cure and permanent cure. If we only focus on the temporary cure then we should consider two types of medicine. One is called “use power to constrain power.” The possible range of power constraints is a very vague one, far from the simplicity of Separation of Three Powers or Five Powers, because within the State itself there are not only horizontal power constraints between organs of the same level of hierarchy, there are also vertical constraints from the central authority to local authorities, or from authorities of higher hierarchical level to those of a lower level. It will be even more complex when talking about the power constrains between state/party organs and other political entities. There is not only one way to efficiently eliminate unlawful phenomena, but the format is the same: establish a system where all powers are constrained by rules, no absolute power or power without constraints can exist.
There is another medicine for the temporary cure that is the competitive election of legislators and main officials of the state organ. The characteristic of competitive elections is that the voters have the possibility to choose representatives or leaders they like and at the same time all qualified citizens have also the possibility to be the candidate to be chosen by the voters. Competitive election is not the ultimate goal here, it is only a method that guarantees the possibility of the voters or ordinary citizens to control the term limits and political fate of the legislators and leaders at each level. Perhaps it is more accurate to say that competitive election is the method with which citizens can use power to constrain power. Unlawful phenomena will be naturally eliminated if different powers are constrained and if absolute and unlimited powers are eliminated. If a disease disappears, it will be natural that its syndromes stop to exist.
If there’s an ambition to obtain the permanent cure, then taking only the above mentioned medicines will be far from enough，we must also take some measures focused on eliminating the predisposing factors that caused the disease. At least two more things should be added to the earlier prescription：1) eliminate the concept of absolute power in ideological and theoretical fields, establish the firm view that both powers of the party and state should be constrained by law, and ratify these views into the legal system. The current Constitution in our country and the Constitution of Chinese Communist Party have clear content and spirits of power constraints by the Constitution and laws, but these contents and spirits are at a excluded position in political theories and official ideology，moreover there is no Law of Political Parties or Law of the Relationship between Political Party and State Organ that concretely implement such contents and spirits. 2) Establish efficient Constitutional Supervision System and examination system of the legality of normative documents. These two systems are both required by our current Constitution, but after 31 years of its implementation, still these systems only appear in constitution-related text。The ineffectiveness of the implementation of the two systems is demonstrated by the fact that our constitutional supervision institution has never publicly reviewed the constitutionality of any law or legal provisions, and of course no related decision were made as well.
In order to contain and rectify the disorderly situation of unlawful behavior, our country has to put forth effort on both the temporary and permanent cure. Basically, that is to require public security institutions to act as models of conduct in accordance with the law.