Friday, February 10, 2012

Part VIII—Zhiwei Tong (童之伟) Series: “Independent Candidate’ has no Legal Basis” is not Correct

 (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 VIII—Zhiwei Tong (童之伟) Series: 
-->“Independent Candidate’ has no Legal Basis” is not Correct published at 2011-06-09 18:09:00

Many media published today the article titled "National People's Congress: ‘Independent Candidate’ has no Legal Basis" or "the NPC Law Committee said, ‘Independent candidate’ has no Legal Basis." For a teacher who teaches Constitutional Law in a University of Political Science and Law, these articles are inevitably astonishing. These articles also remind me of my recently published article "Sparks of Market (Economy) Politics Ignited on the Wilderness of Planned (Economy) Politics " which used in the subtitle the expression “Commenting on the Participation of Independent Candidates in People’s Congress Elections", rising in me further tensions caused by the fear of having expressed anything illegal or committed mistakes.

So, I quickly read these related articles with different titles and found out that although there are differences in the title the contents of the narratives are identical. Their main points are: when answering to the question “ what’s the comment on the internet claim : ‘there are individuals who seeks to run basic level People’s Congress elections as independent candidate’” the person in charge of the Law Committee of the Standing Committee of the NPC said: " according to electoral law, any citizen running for county or township People's Congress representatives, first has to register for voter registration in his electoral district and be reviewed and confirmed by the Election Committee; then, he has to be lawfully recommended as a candidate for representative, according to electoral law candidates for representative are nominated by Political Parties and Mass Organizations jointly or separately, or jointly by ten or more people from the electoral district; thirdly candidates for representative are summarized by the Election Committee and then presented to the voters of the electoral district to be discussed and consulted. Formal list of candidates is determined according to the views of the majority of voters or, if necessary, formal list of candidates can be determined by pre-elections; fourthly, the introduction of the candidates has to be carried out through unitary organization of the Election Committee”. "Based on the above provisions, there can be only ‘candidates for representative’ of the county or township People's Congress nominated according to lawful procedures by the Political Parties, Mass Organizations, and voters, as well as ‘formal candidate representative’ determined through the discussion and consultation or by pre-election, there are no so-called ' independent candidate '. “Independent candidate' has no legal basis. "

It is after having read the above words that I can set myself at ease: my article was not illegal and did not make any mistake, it is the person in charge of the NPC Law Committee who did not have a very good grasp of the relationship between the legal concepts and the theoretical concept, having spoken unclearly, while the media seemed to have deliberately sought to confuse the public that caused the man-made tension.

Indeed, the original text of the relevant laws does not directly use the word "independent candidate". The original text of Article 29 of the Electoral Act reads: "Political Parties, Mass Organizations, may jointly or separately recommend candidates for representative. Ten or more voters or representatives may also recommend a candidate jointly." “Independent candidate” refers exactly to the candidate nominated jointly by ten or more voters or representatives.

However, in view of the law which does not directly use the term "independent candidate, at most we can only say "original text of the law did not use the term ‘ independent candidate.’” We must not deny the rationality of the term "independent candidate” and the legality of its content. From the view of the wording, one cannot only use terms and words found in the laws and not use terms and words recapitalized through theoretical methods. Nouns, for example, in the field of legal studies can be categorized as terms used in laws and terms recapitalized trough theoretical methods. If one does not use terms recapitalized trough theoretical methods in social life or legal studies, if one criticizes all the expressions based on terms recapitalized trough theoretical methods as “not having legal basis” and implying that they are illegal, then jurists will have no way to express thoughts , lecture or write, nor can politicians speak or write. For example, in many authoritative literature of the Chinese Communist Party Central Committee the “People's Democratic Dictatorship” is the “state system”, also People's Congress system is the “system of government”, however, these two terms are absent in China's Constitution and laws. Just think, can we criticize that these expressions found in authoritative literature of the CCP Central Committee as “not having legal basis” because those terms are not present in the Constitution and other laws? No, we cannot! The experts of the Law Committee of the Standing Committee of the NPC really have to think clearly on this argument.

From the jurisprudential and theoretical view, it is perfectly rational, necessary and legitimate to refer to the “candidate recommended jointly by ten or more voters or representatives” as “independent candidate.” Candidates for representative “recommended by Political Parties and Mass Organizations jointly or separately” are those who have the support and backing force of the Political Parties and Mass Organizations. Candidates “recommended jointly by ten or more voters or representatives” are those who do not have the support or backing force of the Political Parties or Mass Groups, so they run on their own. Relatively speaking, recapitalizing the latter as “independent candidates” is very logical. Try to think, if no theoretical methods to recapitalize the phrase “ten or more voters or representatives can also recommend candidate for representative,” where in the Constitution or other laws can people find a noun to call these specific category of citizens? We have seen that not even the person in charge of the Law Committee of the Standing Committee of the NPC has provided to the public such noun! Moreover, even if one uses the construction of terms “candidate for representative recommended by ten or more voters or representatives”, still, he cannot find the terms as a whole in the Constitution or in other laws, isn’t this also devoid of legal basis?

Of course, even if I put it this way, it is not to say that, theoretically, the term “independent candidate” is the best recapitalization of the expression “candidate for representatives recommended by ten or more voters or representatives aslo.” Logically and theoretically, there is still space for further improvement of the expression “independent candidate,” the Law Committee of the Standing Committee of the NPC should make its own contributions in this aspect.

Beside the above argument I would also like to convey three layers of opinions:

1) In his speech, the person in charge of the Law Committee of the Standing Committee of the NPC has restricted the forms to introduce candidates to the single “unitary organizations of the Election Committee.” Now, this is truly a statement that “has no legal basis”, it also violates legal principles. In fact, Articles 33 of the Electoral Act provides that: “Political Parties, Mass Organizations and voters, representatives can introduce during voters’ meeting the situations regarding the candidates for representative they recommended.” Nor the Constitution or electoral laws have any prohibitive regulations on how to introduce candidates for representative. Since for citizens the legal principle is “legal unless prohibited by law," citizens who participate the elections independently have also the right to introduce the candidates for representative with SMS, micro-blogging or any form that is not prohibited by law.

2) There is extensive difference between The National People’s Congress and the Law Committee of the Standing Committee of the NPC. The Law Committee of the Standing Committee of the NPC is only a functioning organ of the Standing Committee of the NPC; it cannot represent the National People’s Congress. Some media use the title of the National People’s Congress in the nation-wide reporting of the opinion of the person in charge of the Law Committee, rising skeptical thoughts for deliberate false accusation.

3) The independent participation of citizens in the election of People’s Congress will benefit the improvement and enrichment of socialist democracy and elevation of authority of the People’s Congress System. All public institutions have to provide sincere support for citizens to exercise their rights to vote and stand for election; they should not deliberately create obstacles for citizens’ independent participation in the elections for People’s Congress representatives.Hope that reason can win in the 2011 general election of basic level People’s Congress.

(Pix (c) Larry Catá Backer 2012)

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