Tuesday, December 8, 2009

Premier’s Support for Rule of Law Prompts Candid Critique

December 4 is “National Legal Publicity Day” in China, an occasion for the Chinese government—especially those within the country’s legal system—to promote China’s successes in law enforcement and the administration of justice.

This year the Legal Daily, a newspaper published by the Ministry of Justice, gave a prominent position on its front page to a talk given by Premier Wen Jiabao in May 2008 at China University of Political Science and Law (CUPL), one of the nation’s premier law schools and an elite breeding ground for both law enforcement officials and legal practitioners. In his discussion with students, Wen gave strong backing to the promotion of rule of law in China, acknowledging that China faced big challenges in terms of enforcing existing laws and ensuring that justice is “not only done, but also seen to be done.”

While there’s nothing surprising about the publication of a senior leader’s views in a central government newspaper, publishing those views for the first time more than 18 months after being first articulated is rather unusual. This curious situation is alluded to in an editorial (translated below) published in the December 8 edition of Southern Daily (南方日报), the official newspaper of the Guangdong Province Branch of the Chinese Communist Party and part of a family of publications known for in-depth reporting and outspoken views.

The editorial, which was widely republished on official media websites throughout China, focuses on Wen’s explication of one of the mottoes of CUPL, “Governing by law” (法治天下), which he equates with the idea of “supremacy of the law” (法比天大)—literally, “the law is greater than heaven.” Bluntly acknowledging that abuses of power by officials have hindered the development of faith in China’s legal system, the editorial urges readers to reflect on this failure and stresses the importance of enforcement, transparency, and participation as keys to building a society under rule of law.

“Supremacy of the Law”: The Essence of Society Under Rule of Law
Southern Daily editorialist, December 8, 2009

Legal Daily recently featured the full transcript of a talk that Premier Wen Jiabao gave on May 4, 2008, to students at China University of Political Science and Law. Premier Wen said, “The importance of the law can simply not be overemphasized,” “ ‘Governing by law’ means ‘the law is supreme’” and “The difficulty of ruling lies not in making laws, but in making others follow the law. It is better to have no laws than laws that are not followed.”

It is unclear why, after a year and a half, Legal Daily was so late to publish the transcript of Premier Wen’s talk. Perhaps it is simply to re-emphasize the importance of the law. [As for] the law being “greater than heaven,” first one must be clear about what is meant by “heaven.” To some people, especially officials, “heaven” seems to be authority, either those people who allow them to have power or the myriad advantages that power brings. Within the jurisdictions of some people [whose ethos is] “I am number one” and “I am the law,” neither the law nor heaven is of any use; only they themselves are effective.

The more common this phenomenon, the more inevitably it causes people to develop many doubts about rule of law. If ordinary people have problems, the first thing they think of is not taking the matter to court, but rather going to Beijing to petition. The dramatic increase in the number of petitioners in recent years is not just a result of economic development bringing about more social conflict; we also need to look at the problem of insufficient development of rule of law. Over the years, more and more laws have been established, but what truly defines a society under rule of law is not how many laws there are but, rather, whether people act in accordance with legal norms, whether those with power respect the law, and whether the law rules supreme over authority. Unfortunately, the administration of justice continues to encounter pressure from all sorts of public power, as evidenced by the fact that lawsuits against the government rarely succeed, [because] judges sometimes do not decide cases on the basis of the law, but on the basis of official instructions. After years of this, why should ordinary people have faith in the law? Why shouldn’t officials see the legal system as their plaything? We often say that the administration of justice is the baseline for fairness, but then why are there judgments that pervert the law and interference in the administration of justice? Doesn’t this show that society still suffers from the stubborn disease of authority being above the law?

Such stubborn diseases must be eliminated, even if it means paying a high price. For if authority being above the law is allowed to spread further, [the idea of] “society under rule of law” will be reduced to nothing but a tattered fig leaf, and the resulting weakening of social restraint will be a cost far greater than that which accompanies curing a stubborn disease. In fact, “supremacy of the law” is only the essence of a society under rule of law, something that could not be more a matter of common sense. That it sounds so enlightening when uttered by the premier just shows how lacking we are in common sense. We should reflect on why a truly common faith in the law has not yet been established. Why is the administration of justice faced with all sorts of constraints? Why is the legal system itself designed in ways that do not fully adhere to legal common sense? In analyzing this question, we cannot simply look at external factors but must examine internal ones as well. More effective construction of rule of law, opening up the legislative process and oversight of the law, and promoting a democratic judicial system—all of these would be welcome measures.

The “supremacy of the law” of which Premier Wen spoke is one founded on the premise of a rule of law. Some intentionally twist the phrase to mean that the law is so supreme that it does not have to consider or care about anything else. This is clearly an unreliable interpretation. Premier Wen’s “supremacy of the law” is one in which laws must be observed, one in which there is respect for the law—and especially respect for good laws. This does not mean that all laws are legitimate and constitutional: the former system of “custody and repatriation” is a classic example of a bad law. In addition, recent years have witnessed the phenomenon of “departmental legislative guidance” in the legislative process, something that needs to be guarded against. Government ministries, commissions, and departments that are prevented from participating in the drafting of legislation concerning them have not only insisted on participating but have even played a leading role in guiding the legislative process, with the result that too many departmental interests are manifested in the laws themselves, to the detriment of the public interest. These kinds of laws are the result of a closed-door legislative process, one that ultimately leads to social injustice and hinders the establishment of judicial authority.

“Supremacy of the law” tells us that we must establish faith in the administration of justice in all sectors of society. In order to establish such faith and give the justice system the authority to oversee all matters, we must further reform the external and internal environment for the legal system, curb inappropriate interference in the administration of justice, and promote a democratic judicial process.