Thursday, March 22, 2012

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

 (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 XXV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part III)
First Published March 19, 2011
Part I of this essay was published at Part XV—Zhiwei Tong (童之伟) Series: The Petitioning System and the Constitution of China):
Part II of this essay was published at Part XXIV—Zhiwei Tong (童之伟) Series: Petitioning System and the Constitution of China (Part II).

 * * * * *

5) Strategies to solve problems created by petitioning 
What are the petitioning problems? The term “petitioning problems” mainly refers to the set of pressure and stress brought about by petitioning visits conducted by citizens, legal persons or other organization without following statutory dispute-resolution procedure and by receptions and processing of petitioning visits by relevant public institutions that would create damages to the status and authority of the core political system. 

Petitioning problems have two major forms:  one form consists of the pressure and stress brought about by visits conducted by citizens, legal persons and other organization going around or disordering statutory dispute-resolution procedures; the other form consists of the pressure and stress caused by the inefficiency of the core political system which forces problems, that should be solved by the main channels of the core system, to rush into the petitioning channel and seek remedies through the petitioning system. The cause for this type of pressure and stress can be described by “overload for auxiliary system as the core system lacks relevant functions.” Therefore, the expression “solve petitioning problems” in this article refers to the elimination and resolution of the two above mentioned negative forms of petitioning, it does not mean to eliminate petitioning or reception of petitions. In reality, it is possible to find to some extent phenomena regarding petitioning similar to those mentioned in this article in any countries under the rule of law nowadays, the difference is that people use different language or terms to conceptualize these phenomena. Therefore, petitioning is normal, the auxiliary function of the petitioning system and processing of petitions without harm to the core political system can strengthen the constitutional framework.
Radically speaking, the only way to solve petitioning problems is to build and improve the functional capabilities of the core system; there are no better ways beside this.
In order to enhance the functional capabilities of our country’s justice-promotion system as a whole, it is necessary to form specific consensus on its reform and construction, based on the clear understanding of the relationship between the core system and the petitioning system. Admittedly, in past decades, different mechanisms were applied and coordinated inappropriately during the justice-promotion process guided by the core and auxiliary systems, causing conflicts and competition between the core and auxiliary systems. Opinion holders with different views on the petitioning system have all noticed the above point, and have all tried to provide a prescription of their own to solve petitioning problems.
Some researchers of the petitioning system have provided many prescriptions, but generally these prescriptions do not look very symptomatic. As stated, expansionists hope to elevate the legal status of and add functional power to petitioning organs in order to solve disputes brought through petitioning. If this method of strengthening the petitioning system is imposed, then perhaps it will relatively speaking solve accumulated disputes in the short run with efficiency, but measures of this type will certainly induce more dispute-resolution seekers to present their problems to the petitioning system instead of statutory dispute-resolution systems, causing even more petitions. Moreover, adding more functional power to petitioning organs which has a zero-sum relationship with the core system will reduce unavoidably the power and justice-promotion function of state organs and their working bodies established in accordance with the Constitution and laws. As regarding abolitionists, despite their clear and courageous solution proposed in regard to petitioning problems, their proposals are unattached to the reality of contemporary China, or might not even be pertinent to the need of future China. In the long run, the presence of auxiliary system is necessary and beneficial to the stability of the core political system and its full exercise of functions. The fact that many countries under advanced rule of law have parliamentary supervision organs or official reception organs for appeals by citizens, explain to a certain degree my argument. 
            Seeing from the result of researches so far, part of the suggestions by holders of reformist view on the petitioning system has better reference value than other schools of thoughts. Reformist scholars proposed that in order to solve petitioning problems, it is not only necessary to reconstruct and renew the petitioning system, but also necessary to reconstruct and renew the entire dispute-resolution and remedy-seeking mechanism. Their reforms include: unify current petitioning organs that are too scattered by establishing a nationwide computer network system; establish parliamentary supervision or executive supervision system similar to foreign countries in order to coordinate the petitioning works in various departments of various regions; amending the law to expand the scope of administrative reconsideration and administrative litigation; establish a number of specialized administrative tribunals, specialized in disputes such as land expropriation, housing demolition, give full play to the role of NPC representatives in connecting with their voters.[i]  Other reformist scholars propose to consider the reforms of the petitioning system in association with the construction of national constitutional politics and political modernization by setting the medium-term policy for the temporary solution of petitioning problems as “strengthen the responsibility and ability of judicial organs at various levels to receive complaints and appeals by citizens as well as to process such cases,” and by setting the long term policy for the fundamental solution of petitioning system as “abolish petitioning organs in all departments of governments at all levels, concentrate petitioning to the NPC of various levels, supervise the work of  the government, court and the procuratorate through the NPC and establish systematic organizations that express interests of the people.”[ii] These understandings show the comprehensiveness of reformists’ observation and awareness. Their proposal for reform is better targeted and has stronger feasibility, it also include thoughts to enhance the construction of the legal system in order to reduce the reliance on the petitioning system in the process of promoting justice. However, it is probably due to the difference in academic emphasis that they have not conducted a division of the Chinese constitutional framework into the core political system and auxiliary system, nor have they discussed the relationship of the petitioning system to the core system as part of the auxiliary system. Due to this reason, they have never well explained the internal connections between the construction and reforms of the core system and the development of the petitioning system, thus no systematic and constructive opinions were proposed regarding the management of the relationship between these two systems belonging to two different legal statuses.  
            From the point of view of the constitution and core-system auxiliary theory, regarding the reforms of the petitioning system, whether at present time or long term, we can only develop them towards the direction of the enhancement of the core political system. Perhaps, comparatively speaking this is the most suitable way to solve petitioning problems and enhance fundamentally the constitutional framework of our country.       
            But what concrete steps must be followed to advance the construction or reform of the core system in order to radically solve petitioning problems and enhance the function of the constitutional framework? Evidently, there is nothing easier than providing an oversimplified prescription, and there is nothing more meaningless than doing so as well. I think, speaking for jurisprudential researchers, knowing what to do concretely is not important, it is essentially important to make a proper estimation on the direction of development of the interactive relationship between the petitioning system and the core system in association with the specificity and long term necessity of the conditional framework of China. In this regard, since I have already made similar discourses, in this article I would only like to express the following few points as reference for relevant organizations and people who concern about the issue:
1)         The application and reform of the petitioning system has to be considered under the framework of the constitution. Under this framework, the petitioning system is a part of the auxiliary system; it is subordinate to the core system; its construction or reform has to obey and serve to the construction and reform of the core system, its relationship to the core system should be arranged in accordance with this understanding. If this logic is correct, then we cannot stay out of suspicion regarding the appropriateness of some expressions that are still currently quite popular. For example, the reasonability of the expression “legalization of the petitioning system” that appears often on media is very much doubtful,  because this expression is no different than elevating the petitioning system , a component of the auxiliary system, to the same level as the core political system. But the question is that why can we not enhance the functions of the constitutional framework through the construction and improvement of the core system rather than elevating the status of the auxiliary system? Moreover, proposing the “legalization of the petitioning system” is in reality to change the power distribution among state organs at various levels provided by the current constitution, therefore, the implementation process of such proposal would also be the process in which the core system is weakened or harmed. Other examples are the expression “Magna Reception” and the method of establishing joint petition-processing organs unifying power of two or more regional state organs in order to solve disputes.[iii] These actions are against the spirits of independence of the court and procuratorate, and will result in the strengthening of the auxiliary system while weakening the core system.        

2)         The fundamental way to solve petitioning problems is to construct, reform and improve the core system as well as to elevate its justice-promotion functions. The construction, reform and improvement of the core system involve many issues regarding specific institutional construction. Amongst, the most important topic is to elevate the level of civil rights protection, especially the protection of private property, free speech and publication. Regarding the freedom of speech and publication, for example, Premier Wen Jiabao demanded in the “Government Work Report” delivered on the Third Meeting of the Eleventh Session of the NPC : “to create conditions for the people to criticize and supervise the government , at the same time give full play to the supervisory role of the news media, let the power run under sunshine.”[iv] This is a remarkable expression, but these are only words spoken by him on behalf of the highest executive organ of the state, in reality, all public organs should be under the supervision of citizens and news media. It should be created a condition in which media can, on legal basis, publish reports criticizing or even revealing the dark side of local public organs and their leaders, related disputes should be resolved through judicial ways when they arise.
     The solution to petitioning problems has to rely on the construction of the structure of the form of democracy and distribution of legal powers suitable to the characteristics of the market economy. Market economy is a system in which the market plays the basic role in the distribution of economic resources in a society, in correlation, the principles of political and legal life should be consistent with the principles of economic life, that is to say the distribution of political and legal resources is done through the competition as that of the market. This task contains the following contents:

1)    Construction of democratic institutions within the ruling party. Democratization of political parties is the prerequisite and basis for the democratization of the state, it is also the political basis on which state organs at various level can effectively reflect popular opinion. According to the principle that the distribution of political and legal resources is consistent with the distribution of social economic resources, members of the committee leadership at various levels of the ruling party and candidates nominated for leadership positions of state organs by the ruling party should all go through competition before becoming elected , every ordinary party member should have rights to directly elect members of the party leadership and participate in the election to determine party’s nomination of candidates for leadership positions of state organs.        
2)    Legalization, standardization and procedure establishment of the relationship between Party’s organizations at various levels and corresponding state organs. The report of CCP’s Seventeenth Assembly emphasizes that the Party should maintain the basic policy of running the country in accordance with law, elevate the ability to rule in accordance with law, “promote institutionalization, standardization and procedure establishment of socialist democratic politics in order to provide political and legal protection for the continued stability of the Party and State.”[v]  In this regard, the main problem we face now is that there is no constitutional or specific  legal provision that govern the relationship between the organs of the ruling party and state organs, this is an important problem that should be solved immediately.     

3)    Direct and orderly competitive elections of NPC representatives at all levels, the standing committee, and main leaders of the Government, Court and Procuratorate at all levels. The reason to form this competitive electoral system is to impel those who hold and apply public authority to be responsible to their voters and protect these voters with law. The first action to be taken is to hold concretely competitive elections of leaders of local state organs, by implementing the current “Local People's Congress and People's Government Organization Law”, making single-candidate election rare exception or isolate case.  

4)    Although the power distribution model between the central government and local government as well as between superior levels and inferior levels of state organs belong to the scope of national organization, it is determined by the level of democratization of its society. In this regard, conducting a reform characterized by the transfer of power towards lower level of the government is an important condition to the solution of petitioning problems.   
What has the most direct meaning to the solution of petitioning problem is to elevate the authority and the public trust of judicial organs, the court especially. Authority and public trust of judicial organs are the soft resources accumulated through years of independent exercise of functional power. In the past 30 years after the “Opening Up and Reform ,” the judicial authority and public trust in our country has both gained and weakened, as a whole it is still in serious shortage. This situation of the judicial system is not only a huge potential threat to the stability of the nation, but also a fundamental cause of the formation and development of petitioning problems. Justice in our country needs mostly an image of independent exercise of functional power and neutrality. Therefore, the leadership of the ruling party should be able to notice the difference of the judiciary branch compared to the Legislature and the Executive, and change the myopic utilitarian attitude.         
3)             Before the construction and reform of the core political system has reached effective results, the constitutional framework of our country has no other choice but to rely somewhat on the petitioning system. It is impossible to solve petitioning problems without the elevation of the level of civil rights protection, democratization within the ruling party, competitive election of NPC representatives and leaders of state organs at various levels, as well as effective protection of judicial independence. It is thus also meaningless to discuss the weakening of the petitioning system in such circumstances. In this situation, relying on the petitioning system and allowing it to interfere with the tasks or sometimes substitute the function of the core political system are objective necessities independent of human will.

           Of course, when forced to rely somewhat on petitioning system, the principle is that harms to the authority and the status of the core system should be maintained at a minimum level. In our country, there is an unbalanced development of the core political system geographically and also in terms of time, therefore , in some regions, at a certain time, it is not absolutely impossible for individuals in charge to reduce the harm of petitioning reception and process to the core system close to zero while managing to obtain social justice.

4)           Undoubtedly, based on the development trend of the constitutional framework in our country, the petitioning system should soon dilute or demise. Most of its powers, or even all of its powers should be gradually overtaken by the core political system. The Chinese Constitution has not only created the core political system, it has also conferred all powers entrusted by the people to various bodies included within the scope of the core system, these bodies are the National People’s Congress and local People’s Congress.[vi] Therefore, according to the Constitution of our country and principles it provided, the core political system bears the entire constitutional responsibility in promoting justice since the very beginning; therefore it should assume the entire function of the national constitutional framework. Turning our sight to the auxiliary system, although the preamble of the Consecution has confirmed that “the Political Consultative will exists and develop for a long period of time”, the Constitution has never granted the Political Consultative Committee any state power; as regarding the petitioning system, the Constitution has not even mentioned the word “Xinfang” (petitioning), nor any law has had a provision mentioning the word. Therefore, seeing form the view of the Constitution and laws, it is improper to attribute too much justice-promotion functions to the petitioning system.                             
The dilution of the petitioning system should be conducted gradually. The first step is to  abolish the reception of petitions regarding cases ruled by the second instance or retrial of the court. Petitioning regarding legislative bodies should be done through voter reception path by NPC representatives. Petitions regarding executive organs generally have greater reasonability, they may exist for a much longer time, therefore this part of discussion is postponed till later.        
5)  In order to obtain the best efficacy of the current constitutional framework, a clear     placement of the relationship between the arrangement of the petitioning system and the reform and construction of the core system must be made at a comprehensive scale. For more than a decade, what has been missing in the research of the petitioning system and management of petitions is the clear placement of the petitioning system as part of the auxiliary system, based on the division of the core and auxiliary system within the framework of our Constitution. Unclear placement of petitioning system has caused uncoordinated or even conflicting situation between the development of the petitioning system and the reform and construction of the core system;[vii] it has also left to the public impressions an image of unpreparedness, partiality and confusion of relevant parties.  In order to avoid repeated occurrences of this type and change the passive environment regarding petitioning problems, it is extremely necessary to place the petitioning system in the auxiliary system and limit its function within the auxiliary system. This is a question of understanding or question of theory.                
On the one hand, whether in our country or any other country, the core system alone should be capable enough to solve the majority of social disputes and realize the level of social justice that matches the stage of its social development; on the other hand, it is very difficult for the core system of any country to carry the entire load of responsibility of promoting social justice without the support of the auxiliary system. Conjecturing with common sense, if a country over-relied on the auxiliary system, then it means that this country’s core system is not strong and efficient enough; it has to be further strengthened and reformed systematically. Associating this with the reality in our country, if there is need to strengthen the constitutional framework in China, the first concern should be on the strength of the core system, only after considering the core system that it would secondly come to consider whether to seek assistance form the petitioning system or evaluate whether it should be enhanced or not. Same reason, if the constitutional framework of our nation demonstrated great demand for petitioning system, then that demonstration is only the superficial appearance; it is covering the reality that the core system necessitates urgent enhancement and reforms.    
The author thinks, the justice-promotion model based on the proper placement for both the core system and petitioning system should guide the future of reform of the petitioning system. The characteristic of this model is to determine with clarity that the core system is the main body in terms of structure and function in the constitutional framework; the petitioning system and other component of the auxiliary system are only at a position of assistance. The former is an institution provided by the Constitution and laws, the latter is not provided by the legal system thus extrajudicial and subordinate to the former. Under this model, the connection between the core system and petitioning system should be linked by normative documents lower than statutory laws, for example administrative regulations, regional regulations and judicial explanations. It can be said that this is the most suitable model to the current constitution and relevant laws of our country, and the only model that the author can agree with as a supporter of the core-system auxiliary theory.             
6)    It is necessary to reform petition management mechanism. The direction of the reform should be pointed at the elimination of the harms the petitioning system creates to the authority and efficacy of the core system. According to the provisions and spirits of the Constitutions and laws, the role of the core system and petitioning system is very clear, that is: the former is the main body of the constitutional framework, the latter is subordinate to the former; the former is recognized by the Constitution and laws, the latter is subordinate to the auxiliary system established by normative documents inferior to laws and the Constitution. However in practice, the difference of status and legal boundary between the core system and petitioning system are often neglected in our country, causing the formation of a confusing mixture of the two systems, and in the process of justice promotion the two systems sometimes benefit mutually and sometimes result in zero-sum game. The consequence is: on one side the lack of efficacy of the core system causes the birth of a large quantity of petitions, resulting in the over-reliance on the petitioning system when seeking justice; on the other side the petitioning system complements the functions and efficacy of the core system, however it harms and weakens the core system when providing complementary assistance in implementing social justice.       
Under the current petition management mechanism, institutional elements of the petitioning system that have actually made their way to the scope of the functions of the core system generally have a zero-sum relationship with the core system. During the procedure of justice promotion, the competition between the two systems is also of zero-sum nature.   
Following the thinking path described earlier, it is possible to divide logically the interactional relationship of the core system and petitioning system into two models: one is the “contained and bounded” model, in this model, although the establishment of petitioning organs does not have legal basis, there are however administrative regulation, regional regulation and other normative documents that serve as normative basis, activities of the petitioning organs in this model fully respect the status and power of statutory organs; the other one is the “wild and  confusion” model, its main characteristics are the establishment and use of extrajudicial organs which go around statutory organs and procedure in order to solve petitioning disputes. The typical behavior of the “wild and confusion” model is the establishment of petitioning organs that possess powers even beyond state organs without any normative basis. This behavior generally harms the functions and powers of statutory state organs.[viii] In the “contained and bounded” model the petitioning system provides complementary and auxiliary functions to the core system. In the “wild and confusion” model, however the effect of the petitioning system has two sides: it does promote justice, but at the same time it has the side effect of harming the status and authority of the core system. We can see this kind of two-sidedness during certain joint reception of petitions by state organs. For example, as reported, in July 13 2008, the party secretary and major of a certain city, along with other eight members of the city leadership “hold a joint conference to study fourteen group petitions. They listened to individual report of each petition, analyzed them individually and provided solution specific to each petition. At the end all fourteen petitions received clear solution methods and assignment of officials in charge of the solution.” [ix] In the context of the report, it looks like they have not only processed one litigation, the eight members of the city leadership might include also the head of the city court and procuratorate. This is to say that this type of joint conference is not only a joint operation between the Party and the local administration, it also has the nature of joint operation that includes the Party, local administration and judicial organs, it is a super-joint operation. However, a temporary joint organ like this, is not consistent with at least the following principle and spirits of the Constitution: rule of low, constitutional and statutory assignment of powers, independence of the court, independence of the procuratorate. Therefore it is not an exaggeration to conclude that this type of extrajudicial organization has harmed the authority and status of the core system when processing and receiving petitions.    
Hence, at least from what is seen in the reality of the current stage, what first faces the reform of the petitioning system is to eliminate organs whose powers and functions are without legal basis and whose processing of petitions harms the core system. In this regard, what is often seen are instances when higher level officials issue orders beyond their statutory power and when organs without statutory basis provide final judgment to disputes ignoring the function and procedure of state organs. These actions are against the principle of the rule of law.                              
If politicians and legalists in our country can have a more profound understanding on the zero-sum relationship between the petitioning system and core system, and reform it appropriately considering the overall environment, perhaps it will not be particularly difficult to radically eliminate or ease petitioning problems in the society. 

(Pix (c) Larry Catá Backer 2012)


[i] Jiang Mingan, “Reforming the Petitioning System to Refresh Dispute-Resolution and Remedy-Seeking Mechanism in our Country, ” Public Law Website of Peking University, May 19 2005.  姜明安:《改革信访制度,创新我国解纷和救济机制》,北大公法网,2005519日,

[ii] Same as note 14 in part II, Yu Jianrong. 同前注[14],于建嵘文。

[iii] In recent years, beside the Committee of Political and Legal Affairs of local Party Committee, there are also petitioning organs that jointly represent local administration, court and procuratorate with different names such as “Office of Stability Maintenance,” “Office of Pracuratorial Supervision” or “Office of Coordination.” These offices often process petitions of extensive importance with substantial decision and then enforce the decision in name of the court. This is evidently against provisions of Article 126 of the Constitution regarding the independence of the court. Between May and April of 2010 the author conducted research in this aspect in Foshan, Guangdong province, and Qiming, Shanghai Municipality, and found out that such joint operations are rather common methods to process petitions.  

[iv] “Government Work Report” presented to the Third Meeting of the Eleventh Session of the NPC by Premier Wen Jiabao. Xinhua News Agency, 15 March.  温家宝总理在第十一届全国人大三次会议上所作的《政府工作报告》,新华社北京315日电。

[v] “Collection of Documents of CCP’s Seventeenth National Representative Assembly,” People’s Press 2007, p.28.《中国共产党第十七次全国代表大会文件汇编》,人民出版社2007年版,第28页。

[vi] The Second Article of the Constitution provides: “All power in the People's Republic of China belongs to the people. The organs through which the people exercise state power are the National People's Congress and the local people's congresses at different levels.”《宪法》第2条规定,国家的“一切权力属于人民。人民行使国家权力的机关是全国人民代表大会和地方各级人民代表大会。”

[vii] In this aspect, one of the most common situations is the willingness to solve disputes through petitioning path rather than institutional channels provided by the Constitution and laws. For example in regard of communications between the government and the public, there is a large number of People’s Congress representatives, they can do much in terms of connecting with voters and representing their wishes, however the current core system has not formed an efficient mechanism that impels the representatives to undertake the responsibilities for their voters in their corresponding constituency. Facing this situation of lack  of “hardware,” relevant parties instead of improving and forming efficient mechanism through reforms, they choose to spend more time and energy in launching activities such as “Magna Reception” and promote temporary non-institutional initiatives. Other frequent situations include: establishment of temporary joint petitioning organs that exercise state powers beyond the Constitution and laws;  and special orders regarding certain petitions made by leaders of local party organizations, People’s Congress, government and Political Consultative Assembly to the court of the same or lower levels.  

[viii] Many offices established by municipal, district and country level party committee with different title but similar joint powers all possess this nature. A real example revealed recently is the “Office of Leadership Team on the Disposal of Popular Illegal Financial Activities” in Leqing city, Zhejiang Province. Not long ago this so called “office,” ordered an arrest by the Public Security Bureau and then asked the family of the individual arrested a sum of 500 000 Yuan (about 85 000 USA), the individual was released after the sum of money was paid as promised. As some legal workers pointed out, this office has not only conducted a “transaction” with the power of the Public Security Bureau, it has also done it with the power of the Procuratorate and the Court , even the rights of the individual arrested were transactional. Under the name of “maintaining stability” and “harmonious justice,” problem was solved only with 500 000 Yuan, they have completely overridden on the Law and powers of the Public Security Bureau, the Court and Procuraotrate. This office is not namely a petitioning organ, but it holds petitioning functions, and currently there are many multi-functional petitioning organs that have similar powers to this office. Regarding this Office in Leqing, please see Chen Youxin : “A Living Sample of the Harmonious Justice Theory,” Shanghai Channel Renmin Daily website March 22 2010. 请参加见陈有西:《和谐司法理论的一个活标本》,人民网上海频道20100322日,

[ix] Correspondents Wang Lin, Reporter Tang Runqing: “Magna Reception of Petitions by the Entire Party and Administrative Leadership of Tangshan, Hubei Province ” 通讯员王琳、记者汤润清:《河北省唐山市级党政领导全员大接访》,20080729日,新华网

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