Sunday, February 19, 2012

Part XV—Zhiwei Tong (童之伟) Series: The Petitioning System and the Constitution of China

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), 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) 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.

    (Pix (c) Larry Catá Backer 2012)

Part XV—Zhiwei Tong (童之伟) Series: The Petitioning System[1] 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.”[2] Although recent data shows that, till 2009, the total number of petitions has decreases in the past 5 years,[3] 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:
1)                    Within the framework of our Constitution, with respect to the core political system, the petitioning s-system can only be considered part of the auxiliary system to the core system. Therefore, it must be well distinguished the role played by each system in the relationship between the two systems, the existence and development of the petitioning system have to comply with and serve to the need of the existence and development of the core system.
2)                    Within the framework of our Constitution, functionally speaking, the petitioning system is only complementary to the core system, or a lubricant to the functioning of the core system, the auxiliary system should not rival the core system. Under general circumstances, the petitioning system should not replace or partially substitute the function of the core system in promoting justice, or even become obstacles to the normal functioning of the core system.
3)                    Since the petitioning system is something that falls outside of the core political system, its actual application depends on its own status and its cooperative situation with the core system. If the petitioning system cooperates well with the core system, then they will complement each other. But it would not be normal if they do not cooperate in harmony, causing the petitioning system to create damages to the core system and value of justice the core system represents. If such conflicts happen, adjustments of the petitioning system should be made in accordance with the need of the core system.   
4)                    Petitioning is a form or method to possess and apply the basic right provided by the Article 41 of the Constitution, but it is not a basic right itself or a specific component of a basic right. There is scholar that is inclined to conceptualize or deduce the basic right of the Article 41 of the Constitution as the “Petitioning Right,”[4] but this view has no constitutional basis or legal basis. Academically, it is not yet seen any scholar who provided proves of the petitioning as a certain type of basic rights. To consider petitioning as a “right” causes the suspicion that the status of the petitioning and governmental response to such activities is being inappropriately elevated through artificial manners.  
5)                    At certain stages of development, the demand for petitioning might be high and the petitioning system might occupy a relevant role within the framework of the constitution. This kind of situation only indicates that the core political system has not yet been well established to bear the function to promote justice as it is designed to. The incompleteness of the core system is generally demonstrated as the partial implementation of the Constitution, poor conditions of basic civil right protection, scares number of forms of democracy and inadequate rule of law.  

 (Pix (c) Larry Catá Backer 2012)

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.[5] 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.[6]

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.[7] 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).[8] 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:
1)    For decades, the power in China has always been held in the central government and there are scare local means and resources to resolve disputes. First of all, China has adopted a unitary system; the form of state structure has pushed the power to be concentrated at the central government, only the central government, higher entities can solve problems that local or lower levels can’t solve. According to the positioning of the Preamble to the Constitution and the Article 3 of the Constitution, China is an “unified multi-ethnic country," “the division of functions and powers between the central and local state organs is guided by the principle of giving full play to the initiative and enthusiasm of the local authorities under the unified leadership of the central authorities." Even if according to this provision this kind of system should be considered as a unitary system of democratic centralism, but since the “unified leadership of the central authorities” is the prerequisite and basis for “full play to the initiative and enthusiasm of the local authorities” in reality the degree of concentration of power is even higher than a centralized unitary system state in general. The implementation of the unitary system added to the vast territory and large population of China, makes the degree of power centralization inevitably higher than normal.  Secondly, the long-term implementation of the planned economic system also contributed to the concentration of power in the central government and higher level authorities. As late as the adoption of the Seventh Amendment of the Constitution in 1993, China had always operated under the planned economic system; the characteristics of the planned economic system require the social and economic resource allocation be fundamentally governed by central state agencies. Therefore, planned economy is the economy of power, more precisely, planned economy is the economy of the central administrative power 
It is common sense that whoever has the power concentrated in his hands holds the key to solving problems. Evidently, in a highly centralized system, one would find the easiest way to solve disputes in the lower or basic level through the central or higher level authorities.      
2)    There is a long-term lack of adequate and effective protection for many basic civil rights in the history (of the PRC—translator), there are severe tensions between local officials and ordinary citizens, while abusive  restrictions imposed on the field of free speech and press cause partial and untimely news coverage of serious local conflicts and malpractice, making almost impossible for the general mass to supervise the behavior of public institutions and officials through news media that when encountering injustice can only ask for help from higher level authorities. In this case, it is difficult to solve the problem through democratic channels and the rule of law at the local level. Since the exposure of the problem is the prerequisite to the solution, when citizen’s rights and freedom in the field of free speech and press are not fully protected, it is to mean that media will not be able to publish articles revealing misdeeds of the local public institutions and important officials, that malpractices cannot be exposed to the public and problem solved locally, it is only at a higher level, sometimes as high as the central government that there is some greater hope for the solution.
3)    There is a high degree of allocation plan of political resource, the NPC representatives and leaders of local organs of state at all levels are not elected in competitive electoral system by attracting the electorates’ votes, but to a large extent by top-down decisions. In this system of political resource allocation, NPC representatives and leaders of local state organs at all levels tend to react insensitively to the desires and preferences of the citizens, voters or the general public, or can even take an indifferent attitude since there will be no significant political consequences, causing the lack of representative function and representativeness within the NPC system. This has determined the insufficiency of interest expression function and consultative decision-making function of the NPC at various level; it has also caused the leaders of local state organs to first consider the wishes of the higher authorities instead of the voters’. A high degree of political resource allocation plan is a match to the characteristics of exercising a high degree of centralization on economic allocation of resources under the planned economy.
4)    It is difficult for judicial and procuratorial organs to exercise judicial power and procuratorial power independently, judicial authorities lack a public image of neutrality and fairness and public trust of their investigations, it is especially difficult to implement justice in the lower-level administrative areas. The "Common Agreement" of 1949 only provided to “establish laws and rules to protect the people, build a judicial system of the people,” without mentioning the issue of independent exercise of powers by judicial organs. Nor the 1975 Constitution or the 1978 Constitution mentioned such issues. Article 78 of the 1954 Constitution provided that "The People's Court is independent of the trials and only obeys to the law,” but the reality is that independent trial has not been implemented. Moreover, since 1966, the Constitution in the next 10 years failed as a whole.
Article 126 of the current Constitution passed in 1982 provides: “the people's courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals." Article 131 of the Constitution had similar provisions on the Procuratorate. These provisions left room for the ruling party to lead judicial institutions and the NPC's supervision on the Judiciary, while rising the complex issue of how to manage the relationship between local party organs, NPC and judiciary institutions in accordance with the Constitution. The 1982 Constitution has been adopted for nearly 28 years, but regarding this issue we are still in the process of difficult exploration, the independence necessary for judicial institutions to exercise its function and powers still lacks a system-specific protection, the Judiciary branch as a whole has not been capable of establishing sufficient authority. The authority of the Judiciary branch, fundamentally speaking, does not depend on the size of the coercive power that judicial organs hold in their hands, but by the level of independence and fairness of their decision, it comes from the conviction in the heart of the citizens.
When the rule of man rather than the rule of law becomes the general political setting, the supremacy of the Constitution and laws cannot be effectively established, considerable number of social disputes cannot be resolved on the basis of the rule of law and within the framework of the legal system, then they will in turn seek for remedies from the petitioning system which carries strong characteristics of the rule of man. In many cases, petitioning is to ask for top to bottom interventions by powerful high-level authorities or even central state organs and its functionaries, going beyond the statutory powers and legal procedures. One of the characteristics of the rule of man is the existence and exercise of public power beyond the law. By itself, it seems that greater extrajudicial power would make the resolutions to specific disputes come easier, but institutionally speaking, the resulting negative impact would be invariably greater than its positive meaning, it is a truth repeatedly proved by human experiences of managing state affairs. The rule of man can sometimes resolve disputes, but the rule-of-man approach leads to even great number of disputes; the petitioning system thus is itself a manufacturer of large number of petitions. Moreover, whether the problems involved in a petition can be solve, to a large extent, depends on the degree of concern and intensity of pressure exerted by petitioners. Often the higher petitioners brought the problems to the greater chance they have of solving them. “Making no trouble no solution, little trouble little solution, big trouble big solution,” this type of folk doggerels in their specific sense can truly reflect the reality of the situations in the society. The existence of such petitioning mechanism is per se an important cause for the formation of large number of petitions. 
Thirty years have passed since the early 1980s, direct driving forces and causes that determine the formation and development of the petitioning system have had dramatic changes, but in general no fundamental changes deep down in the root occurred. Among the traditional motivations that caused the expansion of the petitioning system, the economic system is the only one that has had significant changes. Planned economic system is practically abolished; the market economic system has been largely in place, despite the fact that in our country the degree of state intervention in economic life is much higher compared with Europe and the United States. 
In addition, our Constitution established at the end of the last century the general direction of “implementing the rule of law and building a socialist country under the rule of law,” which morally and practically denied the traditional statecraft based on the rule of man. It also gives a complete change of scenario to the direction of the elaboration of the core political system. Of course, in the practical legal life, problems like: to what extent is the rule of man denied, what part of the content or practices of the rule of man are specifically rejected, how to demarcate the boundaries between the rule of man and the rule of law, will all be topics of long-standing controversy. But it seems that we can believe that the results of debates will come to agree on that the boundaries of the rule of man concept will be gradually extended, the boundaries of the concept of the rule of law gradually shirked, and a considerable portion of petitioning and processing activities will be excluded from the scope of the rule of law concept. In these 30 years, factors belonging to the core political system have also had improvements or modifications, but these improvements and modifications only contributed to more comprehensive forms and more standardized operating procedures, there is less substantive changes of the system, there is even some deterioration in certain aspects, such as the competitiveness in the election of the NPC representatives at various levels which has only decreased instead of increasing in the past 30 years.

(Pix (c) Larry Catá Backer 2012)

[1] The administrative system for hearing complaints and grievances from individuals in the People’s Republic of China.------ Translator
[2] Ying Xin, “Petition as Special Administrative Remedies,” Faxue Yanjiu (Jurisprudential Studies), 2004,  3rd Issue.   应星:《作为特殊行政救济的信访救济》,《法学研究》,2004年第3
[3] New Office of the Chinese State Council: “2009 Development of Human Rights Conditions in China,” 26 October 2010. 国务院新闻办公室:《2009年中国人权事业的进展》,20101026
[4] See Liu Dasheng, The Realization of Petitioning and the Resolution of Respondents’ Pressure,  Zhongguo Gaige (Reforms in China) 2005, 5th Issue.  参见刘大生:《上访权的实现与接访压力的化解》,《中国改革》2005 年第五期。
[5] Evidences show, after the October Revolution, demand for petitioning occurred in Soviet Russia, Lenin personally drafted documents to regulate Soviet state organ’s reception of petitions, and received in person hundreds of petitioners.
 See “Complete Work of Lenin,”Remin Press, 1956, p 330;
Genkina Esther B, “Lenin’s State Affairs,”China remin University Press, 1982. P.517
[6]The Petitioning Working Group: “Investigation Report Regarding Petitioning at Basic Administrative Levels”Offical Publication of Sichuan Party School, 2005, 4th issues.  信访工作课题组:《关于基层信访工作的考察报告》中共四川省委省级机关党校学报(新时代论坛)2005年第4期。 
[7]See Diao Jiewei, “a Concise Hisotry of the People’s Petitioning,” Beijing Xueyuan Press, 1996, p.75.
[8]Xinghua News Agency, Wei Wu, “The Petitioning System being Continuously Improved in 60 Years Since the Foundation of the New China,”, 21 September 2009 ” 新华社记者魏武:《新中国60年信访制度不断规范完善》,,20090921日。

No comments: