Sunday, February 26, 2012

Part XXI—Zhiwei Tong (童之伟) Series: Responding with my view to the Xinmin Weekly reporter’s questions on the Crackdown 严打

 (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 XXI—Zhiwei Tong (童之伟) Series: 
-->Responding with my view to the Xinmin Weekly reporter’s questions on the Crackdown
December 16, 2010

[Translator’s note: Strike-Hard (严打 Yanda), also known as Crackdown, is a series of nationwide operations that intend to crackdown on criminals with much heavier punishment than normal. Capital Punishment is widely used during such operations, often for misdemeanors such as thefts, even sexual “misbehavior” could become a felony punishable by the death penalty. Strike-Hard Operation took place in China four times: 1983, 1996, 2001 and 2010.]          
On December 12, 2010, Chen Bing, a Xinmin Weekly reporter, interviewed me on the crackdown and related problems.  Below is the interview:

Reporter: How do you look at the crackdown?  How has this impacted the implementation of the rule of law?  How do we prevent the crackdown from falling into a vicious circle?

Tong Zhiwei: Following and enforcing the law, and prosecuting violators as the daily work of the law enforcement agencies is the norm.  Cracking down is not the norm, the boundaries between cracking down and campaign-style law enforcement has been blurred.  The utilization of the cracking down methods that is very difficult to distinguish from campaign-style law enforcement means that it is very likely to bring the courts, the procuratorate and the police under one roof under the leadership of the police, losing the power to mutually constrain, and also to easily collude over torture and other violations of the defendant’s fundamental rights as citizens.  Cracking down has also contributed to the occurrence of heavy sentencing and miscarriages of justice.

Usually there is not strict enforcement and adherence to the law, and persecution of violators.  If there is a serious problem, then they crackdown; as a result society naturally becomes difficult to govern.  The two initial crackdown campaigns have been particularly obvious in their characteristics; this time, aside from being at different locations, the campaign characteristics have not been so obvious.  This is progress.

Reporter: Cracking down is a political term rather than a legal term, how do the legal circles view this action’s legitimacy and legality?

Tong Zhiwei: The legal circles do not have one unified view of the cracking down enforcement approach.  Generally speaking, however, the view is negative or in disagreement with the mainstream understanding.  People, who are not in favor of cracking down, mainly do so because it is not a norm of social governance and prone to lead to widespread unconstitutional violations of the law.  In the early stages of the reform period, those in power lacked the experience to manage state affairs according to the norm.  That they were forced to use these methods once is understandable.  However, subsequent leaders cannot see how destructive this form of law enforcement is on the rule of law, cannot see how it brings serious problems to the protection of fundamental rights of citizens, and instead have used it repeatedly as if it were some magical weapon.  That is difficult to understand and accept.

Reporter: How does cracking down’s tendency to use the governance logic of violence to meet violence inter-relate with the current state power’s gangster tendencies?

Tong Zhiwei: Public force is essential for social order, but public force must necessarily act only in strict accordance with the law and restrain itself.  “Meeting violence with violence” is uncontrolled simplification of using public force to fight back against an individual’s violence.  “Meeting violence with violence” results from when those in charge lack in capacity or when governance is uncivilized.

Now some of those authorities, organizations and departments that grasp public power have the tendency to act like gangsters.  The people despise and are powerless in the face of this practice.  But I do not believe that we can generalize and say that all state power has become increasingly like gangsters.

Interviewer: From your writings, one gets the feeling that you do not entirely object to the use of cracking down, but instead are opposed to campaign-style enforcement.  How do we prevent cracking down from becoming a campaign-style law enforcement mechanism?  How do we avoid the Niu Yuqiang tragedy from happening again and again?

Tong Zhiwei: In reality, I am against the crackdown form of law enforcement.  Cracking down is an anti-rightist, Cultural Revolution class movement.  At the time that I wrote “Preventing Crackdown from Becoming a Campaign,” I did not do so to oppose crackdown, but in opposition to the Ministry of Public Security’s recent deployment of the crackdown methods and I did not want to say anything that would have made things difficult for them.

As for the Niu Yuqiang case, I do not know much about it.  My initial feeling is that, in this case, had Niu Yuqiang been convicted at the time, the sentencing would have been too heavy.  I experienced the first instance of cracking down and I know that the conviction process at the time was very sloppy and that the sentencing would have been so heavy as to be off the mark.  If there had been any complaints about or if an agency had reviewed the Niu Yuqiang case, then his sentencing would have been reduced.  In fact after the 1983 crackdown, the majority of the sentencing that was deemed as too heavy was reduced.  The most precious thing is life and then freedom.  In any case, from your description of the situation, if we fast forward to the 2020, we will be able to obviously see the unreasonableness and inhumanity, but how do we bring some legal relief for him, I understand too little and cannot say anything too specific.  His family and friends should find a lawyer for him so that they find a way to file a complaint.

Interviewer: You also emphasized in your article how cracking down leads to the malignant expansion of police power.  Within the legal system built by the courts, procuratorate and public security organs, if one entity is dominant, does that mean that the other two bodies sink further?

Tong Zhiwei: In the handling of criminal cases, the police’s violation of the fundamental rights of citizens and the almost total domination of the process that the procuratorate and the courts lose their power of constraint over the investigative process that is sometimes quite serious.  This problem is primarily one that results from the inability of the courts to exercise judicial power independently to provide effective protection and associated with the form of the party’s leadership.  This is not something that can be explained in or two sentences.

Interviewer: Our country has stressed the need to build a harmonious society, how do you effectively protect the fundamental rights of citizens from harm?

Tong Zhiwei: This subject is too large!  It would require several books to explain and I can’t say that much here.  If you want me to explain it in one sentence, then I would say that there should be supervision of the courts, procuratorates and police to ensure strict adherence by the Constitution and the law, as well as acting in strict accordance with the law.

No comments: