Part V—Zhiwei Tong (童之伟) Series: The rule of law: Its Expression is also Critical

 (Zhiwei Tong, PIX (c) Larry Catá Backer)

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 assistant, YiYang Cao for his able work in translating these essays.

 TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE.

 (Pix (c) Larry Catá Backer 2012)

Part V—Zhiwei Tong (童之伟) Series: The rule of law: Its Expression is also Critical

http://libertyzw.fyfz.cn/art/862572.htm

December 23, 2010

The expression of the concept of rule of law to be changed from five to six phrases:

Recommendation 1: Since 2006, China’s socialist concept of law has been summed up and expressed by the five phrases: “rule of law, enforcing the law for the people, fairness and justice, serving the overall situation, and leadership by the party (依法治国、执法为民、公平正义、服务大局、党的领导).”  The proposal to the Central Authorities is to adjust and augment these phrases to become: “development of democracy, protection of human rights, constitutional supremacy, governance by rule of law, fairness and justice, leadership by the party (发展民主、保障人权、宪法至上、依法治国、公平正义、党的领导).”  Of these, the meaning of “enforcement of the law for the people” is included in the meaning of “development of democracy,” while “serving the overall situation” is included in the meaning of “supremacy of the constitution.”

“Development of democracy” is used to summarize and present the constitutional principle of “people’s democracy” and “all power in the state belongs to the people,” as well as “development of socialist democracy,” “expansion of socialist democracy” and other phrases as advocated by the Party Constitution and from the 17th National People’s Congress.  Therefore, it can also be expressed as “people’s democracy,” “expanding democracy,” “power of the people” or “power to the people.”

“Protection of human rights” is the simple expression of the Chinese and Party Constitution providing for the “respect and protection of human rights.”

“Supremacy of the constitution” is the simplified form of the “law of the Constitution is supreme.”  This is the core of the rule of law as stipulated by the Constitution and by the rules stemming from the central authorities.  If you include the broader understanding of the Constitution in the term, law, then we can express this as the “supremacy of the law (法律至上).”

Recommendation 2: These six phrases are preliminary views delivered on the legal profession, legal scholarly opinions that have been fully discussed and then summarized to form this broad consensus on the concept of rule of law.

Recommendation 3: The relevant organizations have expressed the broad idea of the content of the rule of law that is strictly based on and within the framework of the Constitution so as to avoid the need to reinvent the wheel.

What is missing in the “five phrases”:

The main basis for these judgments is based on the following recommendations:

The current “five phrases” of “rule of law, enforcement of the law for the people, fairness and justice, serving the overall situation, and leadership by the party” is not a result of a broad consensus amongst the legal profession or community.  To accurately summarize the concept of the rule of law is only the result of a full discussion of the legal profession and community and cannot be unilaterally determined.  The current “five phrases” is not the consensus result of a free and full discussion.

If the “five phrases” is implemented from the top down, then it will completely conceal the legal profession and community on issues relating to huge disagreements.  From my understanding, those within the legal profession who agree with the “five phrases” are few and far between.

Both “governance by rule of law” and “leadership by the party” are provided for within the Constitution.  Although “fairness and justice” is not directly regulated by the Constitution, its basis is constitutional and legal striving to reflect the inherent quality that both the Party Constitution and the report from 17th National People’s Congress strongly affirm.  Thus, these “three phrases” are good, revealing the concept of rule of law within its contents.

However, the contrast between the reports from the 17th National People’s Congress and the Constitution show a lack of development of democracy, respect for and protection of human rights, and the maintenance of constitutional legal authority as important content of the rule of law.

The master plan of the Chinese Communist Party Constitution also provides for: “development of socialism and democratic politics”; to promote “democratic rule of law, fairness and justice”; “respect and protection of human rights”; “the party must operate within the scope of the Constitution and the laws.”

Compared with the provisions of the socialist rule of law in the Constitution, the “five phrases” also lacks democratic development (or people’s democracy, expanding democracy), respect and protection of human rights, and maintenance of the legal authority of the Constitution among other basic components of the rule of law.

“Enforcing the law for the people” should not be tied to Constitutional guidelines

In the legal development and implementation of a new system, singling out and reinforcing “enforcing the law for the people” would be unbalanced and insufficiently based.  As a result, “enforcing the law for the people” is not suitable for use in the formulation of the statement of the concept of the rule of law.

Based on: that with which “enforcing the law for the people” reflects is only the constitutional principle of “all power belonging to the people” towards one of the requirements of various state agencies of “for the people.”  There should not be legislation to ensure “compliance” and other aspects of singling out “enforcing the law for the people.”  It would also not be advisable to place this on par with the discussion on the constitutional position of “leadership of the party” or “governance by rule of law.”

This proposal within the Constitution, Party Constitution, and the reports from the 17th National People’s Congress are not based upon the consensus of the whole party and should not be used as one of the basic tenets to promote the concept of the rule of law.

“Serving the overall situation” cannot be self-identified by various localities and departments

“Serving the overall situation” lacks an adequate legal basis and in practice will result in the degradation of the power and influence of constitutional law and central authorities, and is not suitable to describe the concept of the rule of law.

The Constitution, Party Constitution and the reports from the 17th National People’s Congress embodies the overall situation representing the party and the country and therefore inappropriate for the various localities and departments to make their own respective interpretations on the meaning of “serving the overall situation” and utilize it as a basic element of the rule of law.

At most, a country has only one overall situation and that overall situation can only be determined by the central authorities not by the various departments or localities.  If we are to employ “serving the overall situation” as a part of the concept of the rule of law, then it will effectively decentralize the power to determine the “big picture” and will undoubtedly create situations where the localities and departments use the pretext of “serving the overall situation” to circumvent their obligations to comply with constitutional law.

From the perspective of a unified national legal system, “serving the overall situation” first and foremost must be embedded within the Constitution and legal system so that the localities and departments will find it undesirable to talk about “serving the overall situation.” Otherwise “serving the overall situation” is bound to become an excuse for localities and departments when they violate specific provisions of the Constitution or the legal system—in fact this situation is actually already quite prevalent.

The formulation of “serving the overall situation” not only cannot use be used to guide the life of the law, but it can easily lead to supreme authority and power to suppress the rule of law.  This is because the “big picture” is ambiguous with a great flexibility of meaning.  All political subdivisions and entities have their own “big picture.”  And each of these “big pictures” is judged and identified by the most influential institutions or officials.

Who has the right to determine the “big picture”?  Through what criterion and procedure does he identify the “big picture”?  These are questions that when “serving the overall situation” represents the rule of law that cannot not be answered and in fact cannot have a standardized answer.

Conclusion: In summary, the expression of the socialist concept of the rule of law removes from the existing “five phrases” the phrases, “enforcing the law for the people” and “serving the overall situation,” and adds the phrases “development of democracy,” “protection of human rights,” and “constitutional supremacy.”  These additions and subtractions do not negate the original content and meaning, instead they better re-summarizes the concept of the rule of law.

 (Pix (c) Larry Catá Backer 2012)