Thursday, February 14, 2013

Rule of Law: From Official Rhetoric to Public Participation

As a new Chinese leadership takes office at the beginning of 2013 there has been much discussion and speculation about what might be in store for reform of China’s legal system. One place to look for signs of things to come might be in official rhetoric, which has shown signs of moderating the rigid “stability maintenance” policies of recent years in favor of policies that relax some political control over the legal system and place more emphasis on rule of law development.

Hainan University Law School Professor Wang Lin.
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In assessing the prospects for legal reform, law professor Wang Lin, who frequently comments on legal affairs for a number of Chinese newspapers, looks not only at official pronouncements but also at the role played by social pressure and public opinion in shaping the reform agenda. In an article published recently in The Beijing News, Wang notes that controversy surrounding the handling of individual cases has energized the public’s enthusiasm for participation in the process of legal reform. This controversy can sometimes be noisy and contentious, but, he argues, it is ultimately a positive force—especially in its tendency to focus on problematic aspects of the legal system. Rather than attempt to steer the public away from discussion of these shortcomings, Wang suggests (in a theme he has discussed in detail before) that the government and legislators would be better off formalizing channels for public participation in the drafting of legislation and planning of new legal institutions.

This does not necessarily shed any light on what future legal reforms might be, but it does point to the links between legal reform and political reform in China and raises the possibility that growing public expectations and demands rule of law might have implications that are broader than legislation and legal institutions themselves.

Pace of “Rule of Law Construction” Can’t Keep Up With “Rule of Law Demand”

Wang Lin, The Beijing News
February 2, 2013

In terms of building rule of law in China, 2012 was a year to remember. That year was the 30th anniversary of the promulgation of the current constitution as well as the 100th anniversary of the promulgation of the Provisional Constitution of the Republic of China. Reviewing what has been more than a century of Chinese constitutionalism, reveals a time of many re-tunings and repeated twists and turns.

Perhaps because there are still many gaps between the current rule of law situation and society’s rule of law demands, the report [delivered by General Secretary Hu Jintao] at the 18th Party Congress placed particular emphasis on [the need to] “accelerate construction of a socialist country based on the rule of law” and “place greater emphasis on the important role the rule of law plays in the country's governance and in social management.” The phrase “accelerate construction” clearly reveals the urgency of rule of law to China.

As for how to “accelerate construction,” the report of the 18th Party Congress placed special stress on: “ensur[ing] that leading officials are guided by law in both thinking and action in their effort to deepen reform, promote development, solve problems, and maintain stability.” In order to draw a clear distinction with rule by man, the ruling party repeated its warning that “no organization or individual has the privilege of overstepping the constitution and laws, and no one in a position of power is allowed in any way to take one's own words as the law, place one's own authority above the law or abuse the law.”

Legislative Progress: Reform of the Criminal and Civil Procedure Laws, Enactment of a Mental Health Law...
Public Enthusiasm for Legislative Participation Continues to Surge

The best way for those in power and legislators to reduce contention and soothe public sentiment is to be more humble, respect democratic rights, and maintain positive interaction with public opinion. Compared to “guiding opinion,” paying attention to legislative bills themselves is the foundation and core.

Another important influence that the 18th Party Congress will have on China’s future can be seen in the new guiding policy for building rule of law: “Make laws in a scientific way, enforce them strictly, administer justice impartially, and ensure that everyone abides by the law.” According to Aristotle’s classic theory, the two basic key elements of rule of law are that there be widespread obedience to laws that have already been enacted and that the laws that everyone obeys be good laws. In order to have “good laws,” we must “make laws in a scientific way.” Given the present degree of social stratification and frequent conflict and somewhat obstructed channels for policy entrepreneurship and interest competition in the legislative process, debate over the enactment and revision of legislation has become unprecedentedly fierce.

The most important legislative events in 2012 were, by far, the revision of the two major procedural laws—the Criminal Procedure Law and the Civil Procedure Law. Although these were only revisions, when you consider it in terms of institutional evolution or look at the number [of provisions] revised, the significance of the revisions to the two major procedural laws far exceeds that of any other legislation last year. The revision of the Criminal Procedure Law covered nearly all aspects of the criminal process: from case-filing to investigation; then to prosecution, defense, adjudication, and implementation; plus a system [covering] evidence. Revision of the Civil Procedure Law covered seven major areas, ranging from the first inclusion of “public interest litigation” in the law and establishment of “small-claims litigation” to things like further definition of adjudication jurisdiction, enactment of property preservation measures, and optimization of a party’s right to request a retrial—none of these is insignificant.

Although revisions to the two major procedural laws were widely different in terms of specific content, there was a shared pursuit of safeguarding human rights. The revised Criminal Procedure Law included the phrase “respect and safeguard human rights” in its section on general principles, and human rights thinking was also expressed in the provisions of the Civil Procedure Law. Even though “respect and safeguard human rights” was already a constitutional principle and lower-order legislation is expected to abide by the constitution, this principle of “safeguarding human rights” would run the risk of being put aside and forgotten about if it were not given particular shape and detail in the legal system through the two major procedural laws, which act as “laws for the application of the constitution.”

Laws are revised to change with the times, and once a revised law takes effect it brings new impetus for social development. For example, the establishment of rules to exclude illegal evidence will directly bring about changes to methods of investigation. Legislation allowing public interest litigation will directly or indirectly promote the development of social organizations.

In 2012, public enthusiasm for participating in the legislative process continued to surge. In a related development, splits in public opinion during the legislative process remained as visible as ever. For example, during revision of the Criminal Procedure Law online public opinion was focused on Article 73, which was labeled the “secret arrest” [provision], and the focus of online opinion for the Mental Health Law was how to deal with “forced psychiatric treatment.” But in the field of official opinion, these worries about individual provisions were considered to be “making mountains out of molehills”; [officials] were more interested in looking at accomplishments and progress. The stark difference between these two fields of opinion is obvious. For the public, which places more emphasis on “participation,” discussion and criticism should, of course, focus on “problem provisions.” Passage of unproblematic provisions about which there is already consensus should be automatic—why even discuss it?

So, the best way for those in power and legislators to reduce contention and soothe public sentiment is to be more humble, respect democratic rights, and maintain positive interaction with public opinion. Compared to “guiding opinion,” paying attention to legislative bills themselves is the foundation and core.

Unsolved Problems: Adding “Crime of Child Abuse,” Abolishing “Crime of Prostitution with Underage Girls,” RTL System Reform...
Public Still Has Many Expectations for Systemic Change

For China in “the period of advancing rule of law construction,” the “Bo-Gu Kailai murder case” and the associated “Wang Lijun case” make clear to all that “all problems are, in the end, problems for the judicial system.”

In the legislative memory of 2012, the equally fierce debates over adding a “crime of child abuse,” abolishing the “crime of prostitution with underage girls,” and reform of re-education through labor (RTL) each remain problems unsolved. Behind each of these public debates is the shadow of individual cases.

In October 2012, after the “Wenling kindergarten teacher child abuse case,” the public security organ placed suspect Yan X under criminal detention for creating a serious disturbance. This caused a fierce debate within legal circles over crime and punishment for Yan. Of particular note is that, at least in the print media, no legal professionals ever expressed the customary concern that “the people of the nation want this person dead.” On the contrary, discussion and analysis of “statutorily prescribed punishment for a crime” occupied the mainstream. This individual case quickly transformed from a “legal discussion” into a “legislative discussion.” This shows that the media’s oversight over [the handling of] individual cases is increasingly rational and cautious.

Whether to retain or abolish the “crime of prostitution with underage girls” is a longstanding topic of discussion. In 2012, two “underage prostitution cases” (one in Yongkang, Zhejiang, and the other in Yongcheng, Henan) brought this debate to the fore once again, where it stayed through the end of the year. And in 2012 calls for abolition of the RTL system reached a new peak, with the flames fanned by influential individual cases like the “Tang Hui case” and “Ren Jianyu case.” Reform of RTL has already reached “a point of no return.”

In the age of social media, [the number of] cases that can be called “influential cases” increases by the day. In selections of the “Top Ten Influential Cases of the Year,” the “Bo-Gu Kailai and Zhang Xiaojun murder case” made the lists of Southern Weekly and other institutions. For China in “the period of advancing rule of law construction,” this case and the associated “Wang Lijun case” make clear to all that “all problems are, in the end, problems for the judicial system.”

More proof of how “individual cases have become public events” would be the “Wu Ying case.” After the Supreme People’s Court remanded this case for retrial, the Zhejiang Province High People’s Court issued a final decision on May 21, 2012, sentencing Wu Ying to death, suspended for two years, for the crime of fundraising fraud, and depriving her of her political rights for life and confiscating all of her personal assets. But the distinction between illegal fundraising and private lending still remains unclear. The greatest significance of Wu Ying’s case is the way it has sped up the pace of reform of private financing and led to the creation of a specific “Wenzhou Pilot Zone for Comprehensive Financial Reform.” There will probably be many more “Wu Yings” in the future, but no one hopes to see any more “Wu Ying cases.”

On October 5, 2011, 13 Chinese crew members were shot and killed by armed attackers while on a boat in the waters of the Mekong River. The “Mekong River Massacre” that took place outside of China’s borders ultimately became the “Mekong River Special Case” under China’s jurisdiction and Naw Kham and others were charged with crimes including intentional homicide, transporting narcotics, kidnapping, and hijacking a ship. On November 6, the Kunming Intermediate People’s Court sentenced Naw Kham and three other principal defendants to death. In this way, the “Mekong River Special Case” became “China’s first case of judicial sovereignty.”

Events in Focus: Shooting of Violent Criminal Zhou Kehua, Wang Lijun’s “Shift from Red to Black,” Li Yapeng Becomes a “Rule of Law Personality”...
Debate over Personalities and Incidents Promotes Progress toward Rule of Law

The judicial process should be authoritative, and it is unnecessary for rule of law to have role models. We should not be concerned if the field of public opinion becomes too contentious or too negative. Debate over personalities and incidents is a positive force for promoting progress toward rule of law.

In this age of deconstruction, authority is weakening and role models are faint and dim. What we remember is the violent criminal Zhou Kehua’s destiny with death, the “narrow escape from death” of the controversial young woman Wu Ying, and “Ph.D. Advisor” Wang Lijun’s shift from red to black. But we probably don’t remember the police officer who shot down Zhou Kehua, the judges who sent Wu Ying back for retrial, or the prosecutors who brought Wang Lijun to trial.

It is difficult to make a list of positive people [involved with] rule of law during the year. For the inclusion of [actor] Li Yapeng on the [list of] “CCTV Rule of Law Personalities of 2012” received a lot of criticism. This doesn’t mean that Li Yapeng’s private philanthropy activities don’t merit praise; what the public questions is what this person and his affairs have to do with “rule of law for the year.”

Returning to common sense, as far as public power is concerned, the goal of rule of law is to place limits on its exercise; as far as specific individuals are concerned, rule of law is aimed at “living proper lives, not harming others, and each receiving what they deserve.” The judicial process should be authoritative, and role models are unnecessary for rule of law. We should not be concerned if the field of public opinion becomes too contentious or too negative. Debate over personalities and incidents is a positive force for promoting progress toward rule of law.