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.
 and the Constitution of China (Part I)
For Part II see Part XXIV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part II)
For Part III see Part XXV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part III)
The Petitioning System refers to the set of stylized arrangement made by the public institutions in response to citizens’ petitions. It has a particular importance in our country’s social life today. However, just like some scholars have pointed out: “the academic research on the Petitioning System is not commensurable to its particular importance.” Although recent data shows that, till 2009, the total number of petitions has decreases in the past 5 years, in the context of building a country ruled by law, critical questions awaiting general consensus across the society in our country rise. These questions include: how to properly look at the past and current petitioning activities and related governmental responses; how to handle the relationship between the petitioning system and the core political system with the spirits of the Constitution and principles of the rule of law; how to solve or ease the problems caused by petitioning; how to reform the entire mechanism with which the authorities respond to petitioning. In order to answer these questions well, we have to find petitioning a reasonable position within the framework of the Constitution of China with respect to the core political system. This article tries to investigate and discuss these problems based on the existing result of academic studies. The article will use the concept of “core political system” and “auxiliary system”, a division developed through the differentiation of political/legal system within constitutional framework of our country.
1) The position of the petitioning system as it should be within the Chinese constitutional framework
It is an extremely difficult task to get a reasonable and accurate grasp of the exact position of the petitioning system within our constitutional framework, because our constitutional framework is in constant motion and the textual system of the Constitution and laws is not always the same as in actual practice. However, in terms of methodology, we should first consider the constitutional framework, determine the right position of the petitioning system as it should be, and then use it as a reference to assess the current and future position of the petitioning system.
With structural and functional factors in mind, we might as well divide the political/legal system within our constitutional framework into the core political system and auxiliary political system. Amongst, the core system refers to the system represented by institutions such as the National People’s Congress. In our country, core political system includes the possession and application of basic civil rights determined by the Constitution, set of principles regarding state power, basic civil rights safeguarded by the Constitution, national institutions and their organization, function and functional procedure established by the Constitution. Constitutional principles closely related to civil life, system of basic rights protection, NPC system, Executive system and Judicial system are all basic components of the core political system of our nation. The auxiliary political system mentioned is a term relative to the core system. It generally refers to that category of system that is within the constitutional framework but outside of the NPC system, its main characteristic is: 1) the Constitution has recognized such system (for example the preamble of the Constitution confirmed the “political consultation system of multi-party cooperation” which “will exist and develop in a long period of time”) but nor the Constitution or other laws have directly recognized that the relevant actors are in possession of such rights or are given of such power (in terms of functional authority and limits to the authority); 2) some institutional arrangements are formed as a result of the interaction between citizens’ who insists some kind of basic rights and the state which bears responsibilities to respond, for example the petitioning system (its constitutional legal source comes from article 41 of our Constitution). There are many auxiliary political systems in our country, the political consultation system has the highest standing, the petitioning system is perhaps only second to the political consultation system, it is therefore also another important component of the auxiliary system of our country.
The common property of the core political system and auxiliary political system is that they are both within the framework of a nation’s constitution. Their differences are as following: 1) the core system has well-established and direct constitutional and legal basis, auxiliary political system has only partially established and indirect or unspecific constitutional or legal basis; 2) core political system has rights and power determined by the Constitution and other laws, as for the auxiliary system nor the Constitution or other laws have determined if any rights is enjoyed or power is possessed by the relevant actors of the system. Therefore the criteria to utilized to distinguish between the core political system and auxiliary political system is not to look at whether they are law related, but to assess whether they have full legal basis, well-established constitutional or statutory status of rights and power.
Of course, the auxiliary political system in or country, both the political consultation system and the petitioning system have some normative documents of different levels as their basis, but this basis cannot provide them with core system status. Regarding the political consultation system the Constitution affirms in its preamble: “the multi-party cooperation and Political Consultation System lead by the Chinese Communist Party will exist and develop for a long period of time.” According to this we can say that the multi-party cooperation and political consultation system are political systems determined by the Constitution, but since nor the Constitution or other laws have provided the Political Consultative Conference at various level the status of state organ, or conferred the Conference the possession or execution of state power and rights, the Political Consultative Conference thus does not belong to the core political system of our nation, it is only an important component of the auxiliary system. As for the petition system, the Constitution has never mentioned the expression “Xingfang” (Petitioning) , we can only deduce from the provisions of Article 41 of the Constitution the meaning of petitioning. Article 41 of the Constitution provides that: “Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary; but fabrication or distortion of facts with the intention of libel or frame-up is prohibited. In case of complaints, charges or exposures made by citizens, the state organ concerned must deal with them in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them.” It can be seen that, from the prospective of citizens, the relevant provisions of the Constitution did not recognize or regulate the petitioning or petitioning activities; at best it only implied the possibility for citizens to exercise fundamental rights by way of petitioning or petitioning activity. From the state perspective, the relevant provisions of the Constitution did not directly affirmed petitioning behavior, and the Constitution and laws have not had direct regulations to confirm and specify the organization and activities of the respondents to petitioners, and therefore there would not be such notion that the Constitution and laws have granted petitioning organs functional power. In these respects, the current Constitution so regulated, the 1954 Constitution, the 1975 Constitution, the Constitution of 1978 and laws established according to the respective Constitution all regulated in this same way.
Of course, there are already administrative norms that are used to regulate citizen’s petitioning and response of the state organs, such as the “Regulations on Petitioning” established by the State Council, and numerous local norms established at provincial/regional and municipal level. But these normative documents, after all, are only regulations below the authority of the law, they are not real laws as defined by the Constitution therefore their existence only shows that there are some support given by normative documents of lower status to the petitioning of citizens and response of public institutions, it cannot prove that the petitioning system is a component of our core political system.
Based on the above mentioned situation and the principle of the Article 5 of the current constitution “to implement the rule of law, and build a socialist country ruled by law,” it seems we can obtain the following points of consensus:
2) The roots of the expansion of the petitioning system and its once reciprocal translocation with the core political system
We’ve said that the relationship between the core political and petitioning system is a relationship between the main and auxiliary actors, according to the provision and regulations of the Constitutions and laws. However due to complex social political reasons, it is not always like that in our nation’s history. In fact, after the ten year turmoil of the Cultural Revolution, for a while there was in the society cases of some systems belonging to the core political system translocated reciprocally with the petitioning system. This situation is worth of our attention and reflections. We should admit that it would have been normal if this kind of situation happened in the early time when the regime was newly founded. Happening twenty years after the establishment of the regime, then, it shows severe level of malpractice. It is however more important to know that the above mentioned is not the normal mode to promote justice, under a normal mode, a national relies on the core political system to achieve social justice, the auxiliary system is only there to add complementary functions.
Due to historical conditions specific to China, the petitioning system already appeared in the early 1950s, almost at the same time of the birth of the People’s Republic. According to some research, the initial form of the petitioning system started in the Secretariat Division of the General Office of the Chinese Communist Party, the main task of the Division was to manage the letters written by ordinary people to the central leadership and receive petitioners, acting as secretaries.
It is not until many many years after that the petitioning system expanded its organization to the various levels of state organs, and extended functionally to domains like democratic supervision and civil rights remedies. In June 7 1957 the Government Administration Council (the later State Council---translator) promulgated the “Decision on how to Process Letters from the People and Reception of the People.” Between 1954 and 1957 due to the problems caused by the Collectivization and Anti-Rightist Campaigns, the total number of petitions increased tremendously, more than 50 institutions or departments of the central government or party committee have established petitioning organs. According to statistics, the number of processed petitions in 1956 by the Secretary Office of the State Council was approximately equal to 2.5 times the number of cases processed from July 1951 to June 1954, and in the time period between January 1957 and September the number doubled compared to that of the same period in 1956. The increase in number of petitions occurred in organs of all regions and governmental departments. By September 1963, the CCP Central Committee and the State Council jointly issued the “Notice on the Strengthening of the Management of Letters and Visits from the People”. Up to this point we can say that China's petitioning system has been formed. However, at that stage, the status of the petitioning system was not yet a prominent one.
After ten years of turmoil of the Cultural Revolution, between 1979 -1981 petitioning once replaced the position of the core political system in various dispute resolution systems, becoming the de facto central link of the Chinese constitutional framework. After the Third Plenary Session of the 11th CCP Central Committee, hundreds of millions of citizens wrote letters or petitions requiring the rectification of miscarriages of justice occurred in PRC’s history and the implementation of the Party’s policy which supported the rectification. The petition organs of the central government, in the year 1979 alone, processed up to 1.27 million letters of visits; at the end of the same year, the central government has also set up a “Petitioning Problem Processing Team”, deploying about 200,000 cadres in the country to deal with petitions and resolving historical issues (generally “political issues” are formed after PRC’s foundation, especially during various political campaigns and the Cultural Revolution---translator). It is unforeseen the number of petitions and petitioners, as well as the number of cadres the state employed to process such petitions in the three-year period between 1979 and 1981.
It was during that period that petitioning became the dominant form of the solution of disputes. In that period when the rectification of miscarriages of justice became the symbolic characteristic of social life, the majority of disputes were essentially resolved in the petitioning process. At that time, the role of the executive, judicial and other state dispute settlement organs, were often limited to complete the necessary legal procedures for petitioners following the decision or conclusion made by the petitioning organs of the Party, the former became a puppet or a rubber stamp to the latter, dispute settlement system provided by the Constitution became in reality the auxiliary system to the petitioning system. This rare case in history occurred primarily between 1979 and 1980.
The above description demonstrates that under the “Common Agreement,” the Constitution of 1954, the Constitution of 1975 and 1978 the dominant position of the core political system gradually degraded within the constitutional framework, so that in 1979, 1980, the auxiliary system of petitioning actually obtained the dominant status through reciprocal translocation with the core political system. After 1981, the petitioning system no longer occupied the dominant position within the constitutional framework and its dispute resolution function has also been shrinking, but it has been held in the framework of our Constitution with great importance even today.
Faced with this situation, it is inevitable to ask why was the petitioning system, not even the most important one within the auxiliary system, able to leap once to a de facto status even higher than the judiciary system in history and occupying such important position within our constitutional framework even today. I think, historically speaking, there are profound social political reasons why the status of the petitioning system in the framework of our Constitution has become so prominent, including the following several kinds: