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Author: Stephen Perry Citation: [No abstract on file]
Author: Matthew Adler Citation: [No abstract on file]
(Zhiwei Tong, PIX (c) Larry Catá Backer)
The Zhiwei Tong (???) Series focuses on translating some ofProfessor Tong’s work on issues of criminal law and justice in China, mattersthat touch on core constitutional issues. Each of the posting willinclude an English translation from the original Chinese, the Chinese originaland a link to the original essay site. Many of the essays will includeannotations that may also be of interest. I hope those of you who areinterested in Chinese legal issues will find these materials, hard to get inEnglish, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi fortheir able work in translating these essays.
(Pix (c) Larry Catá Backer 2012)
Part XV—Zhiwei Tong (???) Series: The Petitioning System[1] and the Constitution of China (Part I)
For Part II see Part XXIV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part II)
For Part III see Part XXV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part III)
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The Petitioning System refers to the set of stylized arrangement made by the public institutions in response to citizens’ petitions. It has a particular importance in our country’s social life today. However, just like some scholars have pointed out: “the academic research on the Petitioning System is not commensurable to its particular importance.†[2] Although recent data shows that, till 2009, the total number of petitions has decreases in the past 5 years, [3] in the context of building a country ruled by law, critical questions awaiting general consensus across the society in our country rise. These questions include: how to properly look at the past and current petitioning activities and related governmental responses; how to handle the relationship between the petitioning system and the core political system with the spirits of the Constitution and principles of the rule of law; how to solve or ease the problems caused by petitioning; how to reform the entire mechanism with which the authorities respond to petitioning. In order to answer these questions well, we have to find petitioning a reasonable position within the framework of the Constitution of China with respect to the core political system. This article tries to investigate and discuss these problems based on the existing result of academic studies. The article will use the concept of “core political system†and “auxiliary systemâ€, a division developed through the differentiation of political/legal system within constitutional framework of our country. 1) The position of the petitioning system as it should be within the Chinese constitutional framework
It is an extremely difficult task to get a reasonable and accurate grasp of the exact position of the petitioning system within our constitutional framework, because our constitutional framework is in constant motion and the textual system of the Constitution and laws is not always the same as in actual practice. However, in terms of methodology, we should first consider the constitutional framework, determine the right position of the petitioning system as it should be, and then use it as a reference to assess the current and future position of the petitioning system.
With structural and functional factors in mind, we might as well divide the political/legal system within our constitutional framework into the core political system and auxiliary political system. Amongst, the core system refers to the system represented by institutions such as the National People’s Congress. In our country, core political system includes the possession and application of basic civil rights determined by the Constitution, set of principles regarding state power, basic civil rights safeguarded by the Constitution, national institutions and their organization, function and functional procedure established by the Constitution. Constitutional principles closely related to civil life, system of basic rights protection, NPC system, Executive system and Judicial system are all basic components of the core political system of our nation. The auxiliary political system mentioned is a term relative to the core system. It generally refers to that category of system that is within the constitutional framework but outside of the NPC system, its main characteristic is: 1) the Constitution has recognized such system (for example the preamble of the Constitution confirmed the “political consultation system of multi-party cooperation†which “will exist and develop in a long period of timeâ€) but nor the Constitution or other laws have directly recognized that the relevant actors are in possession of such rights or are given of such power (in terms of functional authority and limits to the authority); 2) some institutional arrangements are formed as a result of the interaction between citizens’ who insists some kind of basic rights and the state which bears responsibilities to respond, for example the petitioning system (its constitutional legal source comes from article 41 of our Constitution). There are many auxiliary political systems in our country, the political consultation system has the highest standing, the petitioning system is perhaps only second to the political consultation system, it is therefore also another important component of the auxiliary system of our country.
The common property of the core political system and auxiliary political system is that they are both within the framework of a nation’s constitution. Their differences are as following: 1) the core system has well-established and direct constitutional and legal basis, auxiliary political system has only partially established and indirect or unspecific constitutional or legal basis; 2) core political system has rights and power determined by the Constitution and other laws, as for the auxiliary system nor the Constitution or other laws have determined if any rights is enjoyed or power is possessed by the relevant actors of the system. Therefore the criteria to utilized to distinguish between the core political system and auxiliary political system is not to look at whether they are law related, but to assess whether they have full legal basis, well-established constitutional or statutory status of rights and power.
Of course, the auxiliary political system in or country, both the political consultation system and the petitioning system have some normative documents of different levels as their basis, but this basis cannot provide them with core system status. Regarding the political consultation system the Constitution affirms in its preamble: “the multi-party cooperation and Political Consultation System lead by the Chinese Communist Party will exist and develop for a long period of time.†According to this we can say that the multi-party cooperation and political consultation system are political systems determined by the Constitution, but since nor the Constitution or other laws have provided the Political Consultative Conference at various level the status of state organ, or conferred the Conference the possession or execution of state power and rights, the Political Consultative Conference thus does not belong to the core political system of our nation, it is only an important component of the auxiliary system. As for the petition system, the Constitution has never mentioned the expression “Xingfang†(Petitioning) , we can only deduce from the provisions of Article 41 of the Constitution the meaning of petitioning. Article 41 of the Constitution provides that: “Citizens of the People’s Republic of China have the right to criticize and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary; but fabrication or distortion of facts with the intention of libel or frame-up is prohibited. In case of complaints, charges or exposures made by citizens, the state organ concerned must deal with them in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them.†It can be seen that, from the prospective of citizens, the relevant provisions of the Constitution did not recognize or regulate the petitioning or petitioning activities; at best it only implied the possibility for citizens to exercise fundamental rights by way of petitioning or petitioning activity. From the state perspective, the relevant provisions of the Constitution did not directly affirmed petitioning behavior, and the Constitution and laws have not had direct regulations to confirm and specify the organization and activities of the respondents to petitioners, and therefore there would not be such notion that the Constitution and laws have granted petitioning organs functional power. In these respects, the current Constitution so regulated, the 1954 Constitution, the 1975 Constitution, the Constitution of 1978 and laws established according to the respective Constitution all regulated in this same way.
Of course, there are already administrative norms that are used to regulate citizen’s petitioning and response of the state organs, such as the “Regulations on Petitioning†established by the State Council, and numerous local norms established at provincial/regional and municipal level. But these normative documents, after all, are only regulations below the authority of the law, they are not real laws as defined by the Constitution therefore their existence only shows that there are some support given by normative documents of lower status to the petitioning of citizens and response of public institutions, it cannot prove that the petitioning system is a component of our core political system.
Based on the above mentioned situation and the principle of the Article 5 of the current constitution “to implement the rule of law, and build a socialist country ruled by law,†it seems we can obtain the following points of consensus:
1) Withinthe framework of our Constitution, with respect to the core political system,the petitioning s-system can only be considered part of the auxiliary system tothe core system. Therefore, it must be well distinguished the role played byeach system in the relationship between the two systems, the existence anddevelopment of the petitioning system have to comply with and serve to the needof the existence and development of the core system.
2) Withinthe framework of our Constitution, functionally speaking, the petitioning systemis only complementary to the core system, or a lubricant to the functioning ofthe core system, the auxiliary system should not rival the core system. Undergeneral circumstances, the petitioning system should not replace or partiallysubstitute the function of the core system in promoting justice, or even becomeobstacles to the normal functioning of the core system.
3) Since thepetitioning system is something that falls outside of the core politicalsystem, its actual application depends on its own status and its cooperativesituation with the core system. If the petitioning system cooperates well withthe core system, then they will complement each other. But it would not benormal if they do not cooperate in harmony, causing the petitioning system tocreate damages to the core system and value of justice the core systemrepresents. If such conflicts happen, adjustments of the petitioning systemshould be made in accordance with the need of the core system.
4) Petitioningis a form or method to possess and apply the basic right provided by theArticle 41 of the Constitution, but it is not a basic right itself or aspecific component of a basic right. There is scholar that is inclined toconceptualize or deduce the basic right of the Article 41 of the Constitutionas the “Petitioning Right,â€but this view has no constitutional basis or legal basis. Academically, it isnot yet seen any scholar who provided proves of the petitioning as a certaintype of basic rights. To consider petitioning as a “right†causes the suspicionthat the status of the petitioning and governmental response to such activitiesis being inappropriately elevated through artificial manners.
5) Atcertain stages of development, the demand for petitioning might be high and thepetitioning system might occupy a relevant role within the framework of theconstitution. This kind of situation only indicates that the core politicalsystem has not yet been well established to bear the function to promotejustice as it is designed to. The incompleteness of the core system isgenerally demonstrated as the partial implementation of the Constitution, poorconditions of basic civil right protection, scares number of forms of democracyand inadequate rule of law.
(Pix (c) Larry Catá Backer 2012)
2) The roots of the expansion of the petitioning system and its once reciprocal translocation with the core political system
We’ve said that the relationship between the core political and petitioning system is a relationship between the main and auxiliary actors, according to the provision and regulations of the Constitutions and laws. However due to complex social political reasons, it is not always like that in our nation’s history. In fact, after the ten year turmoil of the Cultural Revolution, for a while there was in the society cases of some systems belonging to the core political system translocated reciprocally with the petitioning system. This situation is worth of our attention and reflections. We should admit that it would have been normal if this kind of situation happened in the early time when the regime was newly founded. [5] Happening twenty years after the establishment of the regime, then, it shows severe level of malpractice. It is however more important to know that the above mentioned is not the normal mode to promote justice, under a normal mode, a national relies on the core political system to achieve social justice, the auxiliary system is only there to add complementary functions.
Due to historical conditions specific to China, the petitioning system already appeared in the early 1950s, almost at the same time of the birth of the People’s Republic. According to some research, the initial form of the petitioning system started in the Secretariat Division of the General Office of the Chinese Communist Party, the main task of the Division was to manage the letters written by ordinary people to the central leadership and receive petitioners, acting as secretaries.[6]
It is not until many many years after that the petitioning system expanded its organization to the various levels of state organs, and extended functionally to domains like democratic supervision and civil rights remedies. In June 7 1957 the Government Administration Council (the later State Council—translator) promulgated the “Decision on how to Process Letters from the People and Reception of the People.†Between 1954 and 1957 due to the problems caused by the Collectivization and Anti-Rightist Campaigns, the total number of petitions increased tremendously, more than 50 institutions or departments of the central government or party committee have established petitioning organs. According to statistics, the number of processed petitions in 1956 by the Secretary Office of the State Council was approximately equal to 2.5 times the number of cases processed from July 1951 to June 1954, and in the time period between January 1957 and September the number doubled compared to that of the same period in 1956. The increase in number of petitions occurred in organs of all regions and governmental departments.[7] By September 1963, the CCP Central Committee and the State Council jointly issued the “Notice on the Strengthening of the Management of Letters and Visits from the Peopleâ€. Up to this point we can say that China’s petitioning system has been formed. However, at that stage, the status of the petitioning system was not yet a prominent one.
After ten years of turmoil of the Cultural Revolution, between 1979 -1981 petitioning once replaced the position of the core political system in various dispute resolution systems, becoming the de facto central link of the Chinese constitutional framework. After the Third Plenary Session of the 11th CCP Central Committee, hundreds of millions of citizens wrote letters or petitions requiring the rectification of miscarriages of justice occurred in PRC’s history and the implementation of the Party’s policy which supported the rectification. The petition organs of the central government, in the year 1979 alone, processed up to 1.27 million letters of visits; at the end of the same year, the central government has also set up a “Petitioning Problem Processing Teamâ€, deploying about 200,000 cadres in the country to deal with petitions and resolving historical issues (generally “political issues†are formed after PRC’s foundation, especially during various political campaigns and the Cultural Revolution—translator).[8] It is unforeseen the number of petitions and petitioners, as well as the number of cadres the state employed to process such petitions in the three-year period between 1979 and 1981.
It was during that period that petitioning became the dominant form of the solution of disputes. In that period when the rectification of miscarriages of justice became the symbolic characteristic of social life, the majority of disputes were essentially resolved in the petitioning process. At that time, the role of the executive, judicial and other state dispute settlement organs, were often limited to complete the necessary legal procedures for petitioners following the decision or conclusion made by the petitioning organs of the Party, the former became a puppet or a rubber stamp to the latter, dispute settlement system provided by the Constitution became in reality the auxiliary system to the petitioning system. This rare case in history occurred primarily between 1979 and 1980.
The above description demonstrates that under the “Common Agreement,†the Constitution of 1954, the Constitution of 1975 and 1978 the dominant position of the core political system gradually degraded within the constitutional framework, so that in 1979, 1980, the auxiliary system of petitioning actually obtained the dominant status through reciprocal translocation with the core political system. After 1981, the petitioning system no longer occupied the dominant position within the constitutional framework and its dispute resolution function has also been shrinking, but it has been held in the framework of our Constitution with great importance even today.
Faced with this situation, it is inevitable to ask why was the petitioning system, not even the most important one within the auxiliary system, able to leap once to a de facto status even higher than the judiciary system in history and occupying such important position within our constitutional framework even today. I think, historically speaking, there are profound social political reasons why the status of the petitioning system in the framework of our Constitution has become so prominent, including the following several kinds:
1) Fordecades, the power in China has always been held in the central government andthere are scare local means and resources to resolve disputes. First of all,China has adopted a unitary system; the form of state structure has pushed the powerto be concentrated at the central government, only the central government,higher entities can solve problems that local or lower levels can’t solve. Accordingto the positioning of the Preamble to the Constitution and the Article 3 of theConstitution, China is an “unified multi-ethnic country,” “the division offunctions and powers between the central and local state organs is guided bythe principle of giving full play to the initiative and enthusiasm of the localauthorities under the unified leadership of the central authorities.” Evenif according to this provision this kind of system should be considered as a unitarysystem of democratic centralism, but since the “unified leadership of thecentral authorities†is the prerequisite and basis for “full play to theinitiative and enthusiasm of the local authorities†in reality the degree ofconcentration of power is even higher than a centralized unitary system statein general. The implementation of the unitary system added to the vastterritory and large population of China, makes the degree of powercentralization inevitably higher than normal. Secondly, the long-term implementation of the planned economic systemalso contributed to the concentration of power in the central government andhigher level authorities. As late as the adoption of the Seventh Amendment ofthe Constitution in 1993, China had always operated under the planned economic system;the characteristics of the planned economic system require the social andeconomic resource allocation be fundamentally governed by central stateagencies. Therefore, planned economy is the economy of power, more precisely,planned economy is the economy of the central administrative power
Itis common sense that whoever has the power concentrated in his hands holds thekey to solving problems. Evidently, in a highly centralized system, one wouldfind the easiest way to solve disputes in the lower or basic level through thecentral or higher level authorities.
2) There isa long-term lack of adequate and effective protection for many basic civilrights in the history (of the PRC—translator), there are severe tensionsbetween local officials and ordinary citizens, while abusive restrictions imposed on the field of free speechand press cause partial and untimely news coverage of serious local conflictsand malpractice, making almost impossible for the general mass to supervise thebehavior of public institutions and officials through news media that whenencountering injustice can only ask for help from higher level authorities. Inthis case, it is difficult to solve the problem through democratic channels andthe rule of law at the local level. Since the exposure of the problem is the prerequisiteto the solution, when citizen’s rights and freedom in the field of free speechand press are not fully protected, it is to mean that media will not be able topublish articles revealing misdeeds of the local public institutions andimportant officials, that malpractices cannot be exposed to the public andproblem solved locally, it is only at a higher level, sometimes as high as thecentral government that there is some greater hope for the solution.
3) There isa high degree of allocation plan of political resource, the NPC representativesand leaders of local organs of state at all levels are not elected incompetitive electoral system by attracting the electorates’ votes, but to alarge extent by top-down decisions. In this system of political resourceallocation, NPC representatives and leaders of local state organs at all levelstend to react insensitively to the desires and preferences of the citizens,voters or the general public, or can even take an indifferent attitude sincethere will be no significant political consequences, causing the lack ofrepresentative function and representativeness within the NPC system. This hasdetermined the insufficiency of interest expression function and consultativedecision-making function of the NPC at various level; it has also caused theleaders of local state organs to first consider the wishes of the higherauthorities instead of the voters’. A high degree of political resourceallocation plan is a match to the characteristics of exercising a high degreeof centralization on economic allocation of resources under the plannedeconomy.
4) It isdifficult for judicial and procuratorial organs to exercise judicial power andprocuratorial power independently, judicial authorities lack a public image of neutralityand fairness and public trust of their investigations, it is especiallydifficult to implement justice in the lower-level administrative areas. The”Common Agreement” of 1949 only provided to “establish laws and rulesto protect the people, build a judicial system of the people,†withoutmentioning the issue of independent exercise of powers by judicial organs. Northe 1975 Constitution or the 1978 Constitution mentioned such issues. Article78 of the 1954 Constitution provided that “The People’s Court isindependent of the trials and only obeys to the law,†but the reality is that independenttrial has not been implemented. Moreover, since 1966, the Constitution in thenext 10 years failed as a whole.
Article126 of the current Constitution passed in 1982 provides: “the people’s courtsshall, in accordance with the law, exercise judicial power independently andare not subject to interference by administrative organs, public organizationsor individuals.” Article 131 of the Constitution had similar provisions onthe Procuratorate. These provisions left room for the ruling party to lead judicialinstitutions and the NPC’s supervision on the Judiciary, while rising thecomplex issue of how to manage the relationship between local party organs, NPCand judiciary institutions in accordance with the Constitution. The 1982Constitution has been adopted for nearly 28 years, but regarding this issue weare still in the process of difficult exploration, the independence necessaryfor judicial institutions to exercise its function and powers still lacks a system-specificprotection, the Judiciary branch as a whole has not been capable of establishingsufficient authority. The authority of the Judiciary branch, fundamentallyspeaking, does not depend on the size of the coercive power that judicial organshold in their hands, but by the level of independence and fairness of their decision,it comes from the conviction in the heart of the citizens.
When therule of man rather than the rule of law becomes the general political setting, thesupremacy of the Constitution and laws cannot be effectively established, considerablenumber of social disputes cannot be resolved on the basis of the rule of lawand within the framework of the legal system, then they will in turn seek forremedies from the petitioning system which carries strong characteristics ofthe rule of man. In many cases, petitioning is to ask for top to bottominterventions by powerful high-level authorities or even central state organsand its functionaries, going beyond the statutory powers and legal procedures. Oneof the characteristics of the rule of man is the existence and exercise of publicpower beyond the law. By itself, it seems that greater extrajudicial powerwould make the resolutions to specific disputes come easier, but institutionallyspeaking, the resulting negative impact would be invariably greater than itspositive meaning, it is a truth repeatedly proved by human experiences ofmanaging state affairs. The rule of man can sometimes resolve disputes, but therule-of-man approach leads to even great number of disputes; the petitioning systemthus is itself a manufacturer of large number of petitions. Moreover, whetherthe problems involved in a petition can be solve, to a large extent, depends onthe degree of concern and intensity of pressure exerted by petitioners. Often thehigher petitioners brought the problems to the greater chance they have ofsolving them. “Making no trouble no solution, little trouble little solution,big trouble big solution,†this type of folk doggerels in their specific sensecan truly reflect the reality of the situations in the society. The existenceof such petitioning mechanism is per sean important cause for the formation of large number of petitions.
Thirtyyears have passed since the early 1980s, direct driving forces and causes thatdetermine the formation and development of the petitioning system have haddramatic changes, but in general no fundamental changes deep down in the rootoccurred. Among the traditional motivations that caused the expansion of thepetitioning system, the economic system is the only one that has hadsignificant changes. Planned economic system is practically abolished; themarket economic system has been largely in place, despite the fact that in ourcountry the degree of state intervention in economic life is much higher comparedwith Europe and the United States.
In addition, ourConstitution established at the end of the last century the general directionof “implementing the rule of law and building a socialist country under therule of law,†which morally and practically denied the traditional statecraftbased on the rule of man. It also gives a complete change of scenario to thedirection of the elaboration of the core political system. Of course, in thepractical legal life, problems like: to what extent is the rule of man denied,what part of the content or practices of the rule of man are specificallyrejected, how to demarcate the boundaries between the rule of man and the ruleof law, will all be topics of long-standing controversy. But it seems that wecan believe that the results of debates will come to agree on that the boundariesof the rule of man concept will be gradually extended, the boundaries of theconcept of the rule of law gradually shirked, and a considerable portion of petitioningand processing activities will be excluded from the scope of the rule of lawconcept. In these 30 years, factors belonging to the core political system havealso had improvements or modifications, but these improvements andmodifications only contributed to more comprehensive forms and morestandardized operating procedures, there is less substantive changes of thesystem, there is even some deterioration in certain aspects, such as the competitivenessin the election of the NPC representatives at various levels which has onlydecreased instead of increasing in the past 30 years.
(Pix (c) Larry Catá Backer 2012)
(Zhiwei Tong, PIX (c) Larry Catá Backer)
The Zhiwei Tong (???) Series focuses on translating some ofProfessor Tong’s work on issues of criminal law and justice in China, mattersthat touch on core constitutional issues. Each of the posting willinclude an English translation from the original Chinese, the Chinese originaland a link to the original essay site. Many of the essays will includeannotations that may also be of interest. I hope those of you who areinterested in Chinese legal issues will find these materials, hard to get inEnglish, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi fortheir able work in translating these essays.
(Pix (c) Larry Catá Backer 2012)
Part XXV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part III)
First Published March 19, 2011
Part I of this essay was published at Part XV—Zhiwei Tong (???) Series: The Petitioning System and the Constitution of China):
Part II of this essay was published at Part XXIV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part II).
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5)Strategies to solve problems created by petitioning
What are the petitioning problems? The term “petitioningproblems†mainly refers to the set of pressure and stress brought about bypetitioning visits conducted by citizens, legal persons or other organizationwithout following statutory dispute-resolution procedure and by receptions andprocessing of petitioning visits by relevant public institutions that wouldcreate damages to the status and authority of the core political system.
Petitioning problems have two major forms: one form consists of the pressure and stress brought about by visitsconducted by citizens, legal persons and other organization going around ordisordering statutory dispute-resolution procedures; the other form consists ofthe pressure and stress caused by the inefficiency of the core political systemwhich forces problems, that should be solved by the main channels of the coresystem, to rush into the petitioning channel and seek remedies through thepetitioning system. The cause for this type of pressure and stress can bedescribed by “overload for auxiliary system as the core system lacks relevantfunctions.†Therefore, the expression “solve petitioning problems†in thisarticle refers to the elimination and resolution of the two above mentionednegative forms of petitioning, it does not mean to eliminate petitioning orreception of petitions. In reality, it is possible to find to some extentphenomena regarding petitioning similar to those mentioned in this article inany countries under the rule of law nowadays, the difference is that people usedifferent language or terms to conceptualize these phenomena. Therefore,petitioning is normal, the auxiliary function of the petitioning system and processingof petitions without harm to the core political system can strengthen theconstitutional framework.
Radically speaking, the only way to solve petitioningproblems is to build and improve the functional capabilities of the core system;there are no better ways beside this.
In order to enhance the functional capabilities of ourcountry’s justice-promotion system as a whole, it is necessary to form specificconsensus on its reform and construction, based on the clear understanding ofthe relationship between the core system and the petitioning system.Admittedly, in past decades, different mechanisms were applied and coordinatedinappropriately during the justice-promotion process guided by the core andauxiliary systems, causing conflicts and competition between the core andauxiliary systems. Opinion holders with different views on the petitioning systemhave all noticed the above point, and have all tried to provide a prescriptionof their own to solve petitioning problems.
Some researchers of the petitioning system have providedmany prescriptions, but generally these prescriptions do not look verysymptomatic. As stated, expansionists hope to elevate the legal status of andadd functional power to petitioning organs in order to solve disputes broughtthrough petitioning. If this method of strengthening the petitioning system isimposed, then perhaps it will relatively speaking solve accumulated disputes inthe short run with efficiency, but measures of this type will certainly inducemore dispute-resolution seekers to present their problems to the petitioningsystem instead of statutory dispute-resolution systems, causing even morepetitions. Moreover, adding more functional power to petitioning organs whichhas a zero-sum relationship with the core system will reduce unavoidably thepower and justice-promotion function of state organs and their working bodiesestablished in accordance with the Constitution and laws. As regardingabolitionists, despite their clear and courageous solution proposed in regardto petitioning problems, their proposals are unattached to the reality ofcontemporary China, or might not even be pertinent to the need of future China.In the long run, the presence of auxiliary system is necessary and beneficialto the stability of the core political system and its full exercise offunctions. The fact that many countries under advanced rule of law haveparliamentary supervision organs or official reception organs for appeals bycitizens, explain to a certain degree my argument.
Seeing fromthe result of researches so far, part of the suggestions by holders ofreformist view on the petitioning system has better reference value than otherschools of thoughts. Reformist scholars proposed that in order to solvepetitioning problems, it is not only necessary to reconstruct and renew thepetitioning system, but also necessary to reconstruct and renew the entiredispute-resolution and remedy-seeking mechanism. Their reforms include: unifycurrent petitioning organs that are too scattered by establishing a nationwidecomputer network system; establish parliamentary supervision or executivesupervision system similar to foreign countries in order to coordinate thepetitioning works in various departments of various regions; amending the lawto expand the scope of administrative reconsideration and administrativelitigation; establish a number of specialized administrative tribunals,specialized in disputes such as land expropriation, housing demolition, givefull play to the role of NPC representatives in connecting with their voters.[i] Other reformist scholars propose to considerthe reforms of the petitioning system in association with the construction ofnational constitutional politics and political modernization by setting themedium-term policy for the temporary solution of petitioning problems as“strengthen the responsibility and ability of judicial organs at various levelsto receive complaints and appeals by citizens as well as to process suchcases,†and by setting the long term policy for the fundamental solution ofpetitioning system as “abolish petitioning organs in all departments ofgovernments at all levels, concentrate petitioning to the NPC of variouslevels, supervise the work of thegovernment, court and the procuratorate through the NPC and establishsystematic organizations that express interests of the people.â€[ii] These understandings showthe comprehensiveness of reformists’ observation and awareness. Their proposalfor reform is better targeted and has stronger feasibility, it also includethoughts to enhance the construction of the legal system in order to reduce thereliance on the petitioning system in the process of promoting justice.However, it is probably due to the difference in academic emphasis that theyhave not conducted a division of the Chinese constitutional framework into thecore political system and auxiliary system, nor have they discussed therelationship of the petitioning system to the core system as part of theauxiliary system. Due to this reason, they have never well explained theinternal connections between the construction and reforms of the core systemand the development of the petitioning system, thus no systematic andconstructive opinions were proposed regarding the management of therelationship between these two systems belonging to two different legalstatuses.
From thepoint of view of the constitution and core-system auxiliary theory, regardingthe reforms of the petitioning system, whether at present time or long term, wecan only develop them towards the direction of the enhancement of the corepolitical system. Perhaps, comparatively speaking this is the most suitable wayto solve petitioning problems and enhance fundamentally the constitutionalframework of our country.
But what concrete steps must befollowed to advance the construction or reform of the core system in order toradically solve petitioning problems and enhance the function of theconstitutional framework? Evidently, there is nothing easier than providing anoversimplified prescription, and there is nothing more meaningless than doingso as well. I think, speaking for jurisprudential researchers, knowing what todo concretely is not important, it is essentially important to make a proper estimationon the direction of development of the interactive relationship between thepetitioning system and the core system in association with the specificity andlong term necessity of the conditional framework of China. In this regard,since I have already made similar discourses, in this article I would only liketo express the following few points as reference for relevant organizations andpeople who concern about the issue:
1) The application and reform of thepetitioning system has to be considered under the framework of theconstitution. Under this framework, the petitioning system is a part of theauxiliary system; it is subordinate to the core system; its construction orreform has to obey and serve to the construction and reform of the core system,its relationship to the core system should be arranged in accordance with thisunderstanding. If this logic is correct, then we cannot stay out of suspicionregarding the appropriateness of some expressions that are still currentlyquite popular. For example, the reasonability of the expression “legalizationof the petitioning system†that appears often on media is very muchdoubtful, because this expression is nodifferent than elevating the petitioning system , a component of the auxiliarysystem, to the same level as the core political system. But the question isthat why can we not enhance the functions of the constitutional frameworkthrough the construction and improvement of the core system rather thanelevating the status of the auxiliary system? Moreover, proposing the “legalizationof the petitioning system†is in reality to change the power distribution amongstate organs at various levels provided by the current constitution, therefore,the implementation process of such proposal would also be the process in whichthe core system is weakened or harmed. Other examples are the expression “MagnaReception†and the method of establishing joint petition-processing organsunifying power of two or more regional state organs in order to solve disputes.[iii] These actions areagainst the spirits of independence of the court and procuratorate, and willresult in the strengthening of the auxiliary system while weakening the coresystem.
2) The fundamental way to solve petitioningproblems is to construct, reform and improve the core system as well as toelevate its justice-promotion functions. The construction, reform andimprovement of the core system involve many issues regarding specificinstitutional construction. Amongst, the most important topic is to elevate thelevel of civil rights protection, especially the protection of private property,free speech and publication. Regarding the freedom of speech and publication,for example, Premier Wen Jiabao demanded in the “Government Work Reportâ€delivered on the Third Meeting of the Eleventh Session of the NPC : “to createconditions for the people to criticize and supervise the government , at thesame time give full play to the supervisory role of the news media, let thepower run under sunshine.â€[iv] This is a remarkableexpression, but these are only words spoken by him on behalf of the highestexecutive organ of the state, in reality, all public organs should be under thesupervision of citizens and news media. It should be created a condition inwhich media can, on legal basis, publish reports criticizing or even revealingthe dark side of local public organs and their leaders, related disputes shouldbe resolved through judicial ways when they arise.
The solution to petitioning problems has to rely on the construction ofthe structure of the form of democracy and distribution of legal powerssuitable to the characteristics of the market economy. Market economy is asystem in which the market plays the basic role in the distribution of economicresources in a society, in correlation, the principles of political and legallife should be consistent with the principles of economic life, that is to saythe distribution of political and legal resources is done through the competitionas that of the market. This task contains the following contents:
1) Constructionof democratic institutions within the ruling party. Democratization of politicalparties is the prerequisite and basis for the democratization of the state, itis also the political basis on which state organs at various level caneffectively reflect popular opinion. According to the principle that thedistribution of political and legal resources is consistent with thedistribution of social economic resources, members of the committee leadershipat various levels of the ruling party and candidates nominated for leadershippositions of state organs by the ruling party should all go through competitionbefore becoming elected , every ordinary party member should have rights todirectly elect members of the party leadership and participate in the electionto determine party’s nomination of candidates for leadership positions of stateorgans.
2) Legalization,standardization and procedure establishment of the relationship between Party’sorganizations at various levels and corresponding state organs. The report ofCCP’s Seventeenth Assembly emphasizes that the Party should maintain the basicpolicy of running the country in accordance with law, elevate the ability torule in accordance with law, “promote institutionalization, standardization andprocedure establishment of socialist democratic politics in order to providepolitical and legal protection for the continued stability of the Party andState.â€[v] In this regard, the main problem we face nowis that there is no constitutional or specific legal provision that govern the relationship between the organs of theruling party and state organs, this is an important problem that should besolved immediately.
3) Directand orderly competitive elections of NPC representatives at all levels, thestanding committee, and main leaders of the Government, Court and Procuratorateat all levels. The reason to form this competitive electoral system is to impelthose who hold and apply public authority to be responsible to their voters andprotect these voters with law. The first action to be taken is to holdconcretely competitive elections of leaders of local state organs, byimplementing the current “Local People’s Congress and People’s GovernmentOrganization Lawâ€, making single-candidate election rare exception or isolatecase.
4) Althoughthe power distribution model between the central government and localgovernment as well as between superior levels and inferior levels of stateorgans belong to the scope of national organization, it is determined by thelevel of democratization of its society. In this regard, conducting a reformcharacterized by the transfer of power towards lower level of the government isan important condition to the solution of petitioning problems.
What has the most directmeaning to the solution of petitioning problem is to elevate the authority andthe public trust of judicial organs, the court especially. Authority and publictrust of judicial organs are the soft resources accumulated through years ofindependent exercise of functional power. In the past 30 years after the“Opening Up and Reform ,†the judicial authority and public trust in ourcountry has both gained and weakened, as a whole it is still in seriousshortage. This situation of the judicial system is not only a huge potentialthreat to the stability of the nation, but also a fundamental cause of theformation and development of petitioning problems. Justice in our country needsmostly an image of independent exercise of functional power and neutrality.Therefore, the leadership of the ruling party should be able to notice thedifference of the judiciary branch compared to the Legislature and theExecutive, and change the myopic utilitarian attitude.
3) Before the construction and reform ofthe core political system has reached effective results, the constitutionalframework of our country has no other choice but to rely somewhat on thepetitioning system. It is impossible to solve petitioning problems without theelevation of the level of civil rights protection, democratization within theruling party, competitive election of NPC representatives and leaders of stateorgans at various levels, as well as effective protection of judicialindependence. It is thus also meaningless to discuss the weakening of thepetitioning system in such circumstances. In this situation, relying on thepetitioning system and allowing it to interfere with the tasks or sometimessubstitute the function of the core political system are objective necessitiesindependent of human will.
Of course, when forced to rely somewhat on petitioning system, theprinciple is that harms to the authority and the status of the core systemshould be maintained at a minimum level. In our country, there is an unbalanceddevelopment of the core political system geographically and also in terms oftime, therefore , in some regions, at a certain time, it is not absolutelyimpossible for individuals in charge to reduce the harm of petitioningreception and process to the core system close to zero while managing to obtainsocial justice.
4) Undoubtedly, based on the developmenttrend of the constitutional framework in our country, the petitioning systemshould soon dilute or demise. Most of its powers, or even all of its powersshould be gradually overtaken by the core political system. The ChineseConstitution has not only created the core political system, it has alsoconferred all powers entrusted by the people to various bodies included withinthe scope of the core system, these bodies are the National People’s Congressand local People’s Congress.[vi] Therefore, according tothe Constitution of our country and principles it provided, the core politicalsystem bears the entire constitutional responsibility in promoting justicesince the very beginning; therefore it should assume the entire function of thenational constitutional framework. Turning our sight to the auxiliary system,although the preamble of the Consecution has confirmed that “the Political Consultativewill exists and develop for a long period of timeâ€, the Constitution has nevergranted the Political Consultative Committee any state power; as regarding thepetitioning system, the Constitution has not even mentioned the word “Xinfangâ€(petitioning), nor any law has had a provision mentioning the word. Therefore,seeing form the view of the Constitution and laws, it is improper to attributetoo much justice-promotion functions to the petitioning system.
The dilution of the petitioningsystem should be conducted gradually. The first step is to abolish the reception of petitionsregarding cases ruled by the second instance or retrial of the court.Petitioning regarding legislative bodies should be done through voter receptionpath by NPC representatives. Petitions regarding executive organs generallyhave greater reasonability, they may exist for a much longer time, thereforethis part of discussion is postponed till later.
5) In order to obtain the best efficacy of thecurrent constitutional framework, a clear placement of the relationship between thearrangement of the petitioning system and the reform and construction of thecore system must be made at a comprehensive scale. For more than a decade, whathas been missing in the research of the petitioning system and management ofpetitions is the clear placement of the petitioning system as part of theauxiliary system, based on the division of the core and auxiliary system withinthe framework of our Constitution. Unclear placement of petitioning system hascaused uncoordinated or even conflicting situation between the development ofthe petitioning system and the reform and construction of the core system;[vii] it has also left to thepublic impressions an image of unpreparedness, partiality and confusion ofrelevant parties. In order to avoidrepeated occurrences of this type and change the passive environment regardingpetitioning problems, it is extremely necessary to place the petitioning systemin the auxiliary system and limit its function within the auxiliary system.This is a question of understanding or question of theory.
On theone hand, whether in our country or any other country, the core system aloneshould be capable enough to solve the majority of social disputes and realizethe level of social justice that matches the stage of its social development; onthe other hand, it is very difficult for the core system of any country tocarry the entire load of responsibility of promoting social justice without thesupport of the auxiliary system. Conjecturing with common sense, if a countryover-relied on the auxiliary system, then it means that this country’s coresystem is not strong and efficient enough; it has to be further strengthenedand reformed systematically. Associating this with the reality in our country,if there is need to strengthen the constitutional framework in China, the firstconcern should be on the strength of the core system, only after consideringthe core system that it would secondly come to consider whether to seekassistance form the petitioning system or evaluate whether it should beenhanced or not. Same reason, if the constitutional framework of our nationdemonstrated great demand for petitioning system, then that demonstration isonly the superficial appearance; it is covering the reality that the coresystem necessitates urgent enhancement and reforms.
Theauthor thinks, the justice-promotion model based on the proper placement forboth the core system and petitioning system should guide the future of reformof the petitioning system. The characteristic of this model is to determinewith clarity that the core system is the main body in terms of structure andfunction in the constitutional framework; the petitioning system and othercomponent of the auxiliary system are only at a position of assistance. Theformer is an institution provided by the Constitution and laws, the latter isnot provided by the legal system thus extrajudicial and subordinate to theformer. Under this model, the connection between the core system andpetitioning system should be linked by normative documents lower than statutorylaws, for example administrative regulations, regional regulations and judicialexplanations. It can be said that this is the most suitable model to thecurrent constitution and relevant laws of our country, and the only model thatthe author can agree with as a supporter of the core-system auxiliarytheory.
6) It is necessary to reform petition managementmechanism. The direction of the reform should be pointed at the elimination ofthe harms the petitioning system creates to the authority and efficacy of the coresystem. According to the provisions and spirits of the Constitutions and laws,the role of the core system and petitioning system is very clear, that is: theformer is the main body of the constitutional framework, the latter issubordinate to the former; the former is recognized by the Constitution andlaws, the latter is subordinate to the auxiliary system established bynormative documents inferior to laws and the Constitution. However in practice,the difference of status and legal boundary between the core system andpetitioning system are often neglected in our country, causing the formation ofa confusing mixture of the two systems, and in the process of justice promotionthe two systems sometimes benefit mutually and sometimes result in zero-sum game.The consequence is: on one side the lack of efficacy of the core system causesthe birth of a large quantity of petitions, resulting in the over-reliance onthe petitioning system when seeking justice; on the other side the petitioningsystem complements the functions and efficacy of the core system, however itharms and weakens the core system when providing complementary assistance inimplementing social justice.
Under the current petition managementmechanism, institutional elements of the petitioning system that have actuallymade their way to the scope of the functions of the core system generally havea zero-sum relationship with the core system. During the procedure of justice promotion,the competition between the two systems is also of zero-sum nature.
Following the thinking pathdescribed earlier, it is possible to divide logically the interactionalrelationship of the core system and petitioning system into two models: one isthe “contained and bounded†model, in this model, although the establishment ofpetitioning organs does not have legal basis, there are however administrativeregulation, regional regulation and other normative documents that serve asnormative basis, activities of the petitioning organs in this model fullyrespect the status and power of statutory organs; the other one is the “wildand confusion†model, its maincharacteristics are the establishment and use of extrajudicial organs which go aroundstatutory organs and procedure in order to solve petitioning disputes. Thetypical behavior of the “wild and confusion†model is the establishment ofpetitioning organs that possess powers even beyond state organs without anynormative basis. This behavior generally harms the functions and powers ofstatutory state organs.[viii] In the “contained andbounded†model the petitioning system provides complementary and auxiliaryfunctions to the core system. In the “wild and confusion†model, however theeffect of the petitioning system has two sides: it does promote justice, but atthe same time it has the side effect of harming the status and authority of thecore system. We can see this kind of two-sidedness during certain jointreception of petitions by state organs. For example, as reported, in July 132008, the party secretary and major of a certain city, along with other eightmembers of the city leadership “hold a joint conference to study fourteen grouppetitions. They listened to individual report of each petition, analyzed themindividually and provided solution specific to each petition. At the end allfourteen petitions received clear solution methods and assignment of officialsin charge of the solution.†[ix] In the context of thereport, it looks like they have not only processed one litigation, the eightmembers of the city leadership might include also the head of the city courtand procuratorate. This is to say that this type of joint conference is notonly a joint operation between the Party and the local administration, it alsohas the nature of joint operation that includes the Party, local administrationand judicial organs, it is a super-joint operation. However, a temporary jointorgan like this, is not consistent with at least the following principle andspirits of the Constitution: rule of low, constitutional and statutoryassignment of powers, independence of the court, independence of theprocuratorate. Therefore it is not an exaggeration to conclude that this typeof extrajudicial organization has harmed the authority and status of the coresystem when processing and receiving petitions.
Hence, at least from what isseen in the reality of the current stage, what first faces the reform of thepetitioning system is to eliminate organs whose powers and functions arewithout legal basis and whose processing of petitions harms the core system. Inthis regard, what is often seen are instances when higher level officials issueorders beyond their statutory power and when organs without statutory basis providefinal judgment to disputes ignoring the function and procedure of state organs.These actions are against the principle of the rule of law.
If politicians and legalists in our country can have a moreprofound understanding on the zero-sum relationship between the petitioningsystem and core system, and reform it appropriately considering the overallenvironment, perhaps it will not be particularly difficult to radicallyeliminate or ease petitioning problems in the society.
(Pix (c) Larry Catá Backer 2012)
Endnotes
[ii] Same as note 14 in part II, Yu Jianrong. ???[14],?????
[iii] In recent years, beside the Committee of Politicaland Legal Affairs of local Party Committee, there are also petitioning organsthat jointly represent local administration, court and procuratorate withdifferent names such as “Office of Stability Maintenance,†“Office ofPracuratorial Supervision†or “Office of Coordination.†These offices oftenprocess petitions of extensive importance with substantial decision and thenenforce the decision in name of the court. This is evidently against provisionsof Article 126 of the Constitution regarding t
The Court heard oral arguments in two cases yesterday. In Reichle v. Howards, a case arising from the Secret Service’s arrest of a man who touched former Vice President Dick Cheney and made an anti-war comment in a Colorado shopping mall, the Court considered whether the existence of probable cause to make an arrest bars [...]
The Court heard oral arguments in two cases yesterday. In Reichle v. Howards, a case arising from the Secret Service’s arrest of a man who touched former Vice President Dick Cheney and made an anti-war comment in a Colorado shopping mall, the Court considered whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim and whether the Tenth Circuit erred by denying qualified immunity to the arresting agents. In his report on the oral argument for this blog, Lyle Denniston indicates that the Justices seemed sympathetic to the agents – a view shared in coverage by Adam Liptak of the New York Times, Mike Sacks of the Huffington Post, and Mark Sherman of the Associated Press. Bob Drummond of Bloomberg, Warren Richey of the Christian Science Monitor, and Steven D. Schwinn of Constitutional Law Prof Blog also have coverage of the case, which Nina Totenberg previewed yesterday for NPR .
In Vazquez v. United States, the Justices heard oral argument on the scope of the “harmless error†rule of the Federal Rules of Civil Procedure 52(a) and 28 U.S.C. § 2111. At Sentencing Law and Policy, Douglas A. Berman contends that Court’s decision regarding application of harmless error in non-traditional contexts, such as appealed convictions following plea bargains, will affect “how consequential any ruling in Vasquez will become.â€
The Justices also announced three opinions yesterday, the details of which Kali covered here. In Missouri v. Frye, the Court held – by a vote of five to four – that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that such a right applies to “all ‘critical’ stages of the criminal proceedings.†And in Lafler v. Cooper, the Court held (by the same five-to-four vote) that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Coverage of and commentary on the two decisions come from Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.
In Sackett v. EPA, a unanimous Court held that landowners may bring a civil action under the Administrative Procedure Act to challenge the EPA’s issuance of an administrative compliance order under Section 309 of the Clean Water Act requiring them to take certain actions with respect to their property. Lyle Denniston analyzes the opinion for this blog, with other coverage coming from Greg Stohr and Mark Drajem of Bloomberg, Robert Barnes and Juliet Eilperin of the Washington Post, Lawrence Hurley of E&E Greenwire, Bettina Boxall and David G. Savage of the Los Angeles Times, Warren Richey of the Christian Science Monitor, Ilya Somin and Jonathan H. Adler of the Volokh Conspiracy, Mark Sherman of the Associated Press, Debra Cassens Weiss of the ABA Journal, James Vicini of Reuters, Nina Totenberg and Steven Chen of NPR, and Mike Sacks of the Huffington Post. At Conglomerate, David Zaring considers what, if anything, the Court’s decision in Sackett means for the SEC.
Tuesday’s opinions in Mayo Collaborative Services v. Prometheus Laboratories, Martinez v. Ryan, and Coleman v. Court of Appeals of Maryland continue to generate coverage and commentary. Ronald Mann analyzes the opinion in Mayo for SCOTUSblog; meanwhile, at Alison Frankel’s On the Case blog for Reuters, Terry Baynes reports that “[l]awyers at the American Civil Liberties Union see the high court’s unanimous decision as a good omen for their own case challenging the patentability of human genes.†Timothy B. Lee of Cato@Liberty, Sandra S. Park at ACSblog, and Michael Risch at Madisonian.net also comment on Mayo (hat-tip to Orin Kerr of the Volokh Conspiracy for the last link). At this blog, Steve Vladeck analyzes the Court’s opinion in Martinez, while Nina Totenberg and Steven Chen of NPR cover the decision in Coleman.
Finally, anticipation of next week’s arguments in the health care cases continued. At this blog, Kali linked to several longer advocacy pieces on the constitutionality of the Affordable Care Act, while Lyle previews the severability issue (which will be argued on Wednesday morning) for this blog. Oyez has an interactive tool explaining the procedural history of the litigation and providing video interviews on key issues, while at the Wall Street Journal (subscription required), Jess Bravin profiles the advocates in next week’s arguments. At The Atlantic, Jack Balkin predicts that the Court will not find the Act unconstitutional, but he also notes that “if all of the conservative justices believed that the health care bill was a harbinger of even more radical possibilities — a new era of mindless statism and pervasive socialism — they might seek to nip things in the bud, and risk the political consequences.†The editorial board of the Christian Science Monitor frames the health care debate as an issue of state sovereignty. Linda Greenhouse of the Opinionator blog of the New York Times, Mara Liasson of NPR, Jeffrey Young and Ruth Schulenberg at the Huffington Post, Ron Pollack and Wade Henderson at the Washington Post, Steve Inskeep and Ari Shapiro of NPR, Jonathan Cohn of the New Republic, David Bernstein at the JURIST Forum, and Douglas French at the Christian Science Monitor also have coverage.
Briefly:
- At Forbes, Daniel Fisher contends that the Court’s unanimous opinions in in Sackett and Mayo “sent strong messages to Congress to clean up murky laws that brought these cases to their doorstep in the first place.â€
- At the ABA Journal, Debra Cassens Weiss looks back at Monday’s arguments in Southern Union Company v. United States.
- Jack Elliot, Jr. of the Associated Press (via the Biloxi Sun-Herald) reports that a Mississippi death row inmate has asked the Court to stay his execution, which is scheduled for tonight.
- In an op-ed for the Los Angeles Times, Erwin Chemerinsky and Eric J. Segall argue that the Court should lift its ban on video cameras.
- Bonnie Goldstein of the Washington Post’s She The People blog looks at Tuesday’s arguments in Miller v. Alabama and Jackson v. Hobbs through the lens of the 1999 Jonesboro, Arkansas school shootings, during which four children were killed by two classmates.
In association with Bloomberg Law
(Zhiwei Tong, PIX (c) Larry Catá Backer)
The Zhiwei Tong (???) Series focuses on translating some ofProfessor Tong’s work on issues of criminal law and justice in China, mattersthat touch on core constitutional issues. Each of the posting willinclude an English translation from the original Chinese, the Chinese originaland a link to the original essay site. Many of the essays will includeannotations that may also be of interest. I hope those of you who areinterested in Chinese legal issues will find these materials, hard to get inEnglish, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi fortheir able work in translating these essays.
(Pix (c) Larry Catá Backer 2012)
Part XV—Zhiwei Tong (???) Series: The Petitioning System[1] and the Constitution of China (Part I)
For Part II see Part XXIV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part II)
For Part III see Part XXV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part III)
* * * * * *
The Petitioning System refers to the set of stylized arrangement made by the public institutions in response to citizens’ petitions. It has a particular importance in our country’s social life today. However, just like some scholars have pointed out: “the academic research on the Petitioning System is not commensurable to its particular importance.†[2] Although recent data shows that, till 2009, the total number of petitions has decreases in the past 5 years, [3] in the context of building a country ruled by law, critical questions awaiting general consensus across the society in our country rise. These questions include: how to properly look at the past and current petitioning activities and related governmental responses; how to handle the relationship between the petitioning system and the core political system with the spirits of the Constitution and principles of the rule of law; how to solve or ease the problems caused by petitioning; how to reform the entire mechanism with which the authorities respond to petitioning. In order to answer these questions well, we have to find petitioning a reasonable position within the framework of the Constitution of China with respect to the core political system. This article tries to investigate and discuss these problems based on the existing result of academic studies. The article will use the concept of “core political system†and “auxiliary systemâ€, a division developed through the differentiation of political/legal system within constitutional framework of our country. 1) The position of the petitioning system as it should be within the Chinese constitutional framework
It is an extremely difficult task to get a reasonable and accurate grasp of the exact position of the petitioning system within our constitutional framework, because our constitutional framework is in constant motion and the textual system of the Constitution and laws is not always the same as in actual practice. However, in terms of methodology, we should first consider the constitutional framework, determine the right position of the petitioning system as it should be, and then use it as a reference to assess the current and future position of the petitioning system.
With structural and functional factors in mind, we might as well divide the political/legal system within our constitutional framework into the core political system and auxiliary political system. Amongst, the core system refers to the system represented by institutions such as the National People’s Congress. In our country, core political system includes the possession and application of basic civil rights determined by the Constitution, set of principles regarding state power, basic civil rights safeguarded by the Constitution, national institutions and their organization, function and functional procedure established by the Constitution. Constitutional principles closely related to civil life, system of basic rights protection, NPC system, Executive system and Judicial system are all basic components of the core political system of our nation. The auxiliary political system mentioned is a term relative to the core system. It generally refers to that category of system that is within the constitutional framework but outside of the NPC system, its main characteristic is: 1) the Constitution has recognized such system (for example the preamble of the Constitution confirmed the “political consultation system of multi-party cooperation†which “will exist and develop in a long period of timeâ€) but nor the Constitution or other laws have directly recognized that the relevant actors are in possession of such rights or are given of such power (in terms of functional authority and limits to the authority); 2) some institutional arrangements are formed as a result of the interaction between citizens’ who insists some kind of basic rights and the state which bears responsibilities to respond, for example the petitioning system (its constitutional legal source comes from article 41 of our Constitution). There are many auxiliary political systems in our country, the political consultation system has the highest standing, the petitioning system is perhaps only second to the political consultation system, it is therefore also another important component of the auxiliary system of our country.
The common property of the core political system and auxiliary political system is that they are both within the framework of a nation’s constitution. Their differences are as following: 1) the core system has well-established and direct constitutional and legal basis, auxiliary political system has only partially established and indirect or unspecific constitutional or legal basis; 2) core political system has rights and power determined by the Constitution and other laws, as for the auxiliary system nor the Constitution or other laws have determined if any rights is enjoyed or power is possessed by the relevant actors of the system. Therefore the criteria to utilized to distinguish between the core political system and auxiliary political system is not to look at whether they are law related, but to assess whether they have full legal basis, well-established constitutional or statutory status of rights and power.
Of course, the auxiliary political system in or country, both the political consultation system and the petitioning system have some normative documents of different levels as their basis, but this basis cannot provide them with core system status. Regarding the political consultation system the Constitution affirms in its preamble: “the multi-party cooperation and Political Consultation System lead by the Chinese Communist Party will exist and develop for a long period of time.†According to this we can say that the multi-party cooperation and political consultation system are political systems determined by the Constitution, but since nor the Constitution or other laws have provided the Political Consultative Conference at various level the status of state organ, or conferred the Conference the possession or execution of state power and rights, the Political Consultative Conference thus does not belong to the core political system of our nation, it is only an important component of the auxiliary system. As for the petition system, the Constitution has never mentioned the expression “Xingfang†(Petitioning) , we can only deduce from the provisions of Article 41 of the Constitution the meaning of petitioning. Article 41 of the Constitution provides that: “Citizens of the People’s Republic of China have the right to criticize and make suggestions to any state organ or functionary. Citizens have the right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary; but fabrication or distortion of facts with the intention of libel or frame-up is prohibited. In case of complaints, charges or exposures made by citizens, the state organ concerned must deal with them in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures, or retaliate against the citizens making them.†It can be seen that, from the prospective of citizens, the relevant provisions of the Constitution did not recognize or regulate the petitioning or petitioning activities; at best it only implied the possibility for citizens to exercise fundamental rights by way of petitioning or petitioning activity. From the state perspective, the relevant provisions of the Constitution did not directly affirmed petitioning behavior, and the Constitution and laws have not had direct regulations to confirm and specify the organization and activities of the respondents to petitioners, and therefore there would not be such notion that the Constitution and laws have granted petitioning organs functional power. In these respects, the current Constitution so regulated, the 1954 Constitution, the 1975 Constitution, the Constitution of 1978 and laws established according to the respective Constitution all regulated in this same way.
Of course, there are already administrative norms that are used to regulate citizen’s petitioning and response of the state organs, such as the “Regulations on Petitioning†established by the State Council, and numerous local norms established at provincial/regional and municipal level. But these normative documents, after all, are only regulations below the authority of the law, they are not real laws as defined by the Constitution therefore their existence only shows that there are some support given by normative documents of lower status to the petitioning of citizens and response of public institutions, it cannot prove that the petitioning system is a component of our core political system.
Based on the above mentioned situation and the principle of the Article 5 of the current constitution “to implement the rule of law, and build a socialist country ruled by law,†it seems we can obtain the following points of consensus:
1) Withinthe framework of our Constitution, with respect to the core political system,the petitioning s-system can only be considered part of the auxiliary system tothe core system. Therefore, it must be well distinguished the role played byeach system in the relationship between the two systems, the existence anddevelopment of the petitioning system have to comply with and serve to the needof the existence and development of the core system.
2) Withinthe framework of our Constitution, functionally speaking, the petitioning systemis only complementary to the core system, or a lubricant to the functioning ofthe core system, the auxiliary system should not rival the core system. Undergeneral circumstances, the petitioning system should not replace or partiallysubstitute the function of the core system in promoting justice, or even becomeobstacles to the normal functioning of the core system.
3) Since thepetitioning system is something that falls outside of the core politicalsystem, its actual application depends on its own status and its cooperativesituation with the core system. If the petitioning system cooperates well withthe core system, then they will complement each other. But it would not benormal if they do not cooperate in harmony, causing the petitioning system tocreate damages to the core system and value of justice the core systemrepresents. If such conflicts happen, adjustments of the petitioning systemshould be made in accordance with the need of the core system.
4) Petitioningis a form or method to possess and apply the basic right provided by theArticle 41 of the Constitution, but it is not a basic right itself or aspecific component of a basic right. There is scholar that is inclined toconceptualize or deduce the basic right of the Article 41 of the Constitutionas the “Petitioning Right,â€but this view has no constitutional basis or legal basis. Academically, it isnot yet seen any scholar who provided proves of the petitioning as a certaintype of basic rights. To consider petitioning as a “right†causes the suspicionthat the status of the petitioning and governmental response to such activitiesis being inappropriately elevated through artificial manners.
5) Atcertain stages of development, the demand for petitioning might be high and thepetitioning system might occupy a relevant role within the framework of theconstitution. This kind of situation only indicates that the core politicalsystem has not yet been well established to bear the function to promotejustice as it is designed to. The incompleteness of the core system isgenerally demonstrated as the partial implementation of the Constitution, poorconditions of basic civil right protection, scares number of forms of democracyand inadequate rule of law.
(Pix (c) Larry Catá Backer 2012)
2) The roots of the expansion of the petitioning system and its once reciprocal translocation with the core political system
We’ve said that the relationship between the core political and petitioning system is a relationship between the main and auxiliary actors, according to the provision and regulations of the Constitutions and laws. However due to complex social political reasons, it is not always like that in our nation’s history. In fact, after the ten year turmoil of the Cultural Revolution, for a while there was in the society cases of some systems belonging to the core political system translocated reciprocally with the petitioning system. This situation is worth of our attention and reflections. We should admit that it would have been normal if this kind of situation happened in the early time when the regime was newly founded. [5] Happening twenty years after the establishment of the regime, then, it shows severe level of malpractice. It is however more important to know that the above mentioned is not the normal mode to promote justice, under a normal mode, a national relies on the core political system to achieve social justice, the auxiliary system is only there to add complementary functions.
Due to historical conditions specific to China, the petitioning system already appeared in the early 1950s, almost at the same time of the birth of the People’s Republic. According to some research, the initial form of the petitioning system started in the Secretariat Division of the General Office of the Chinese Communist Party, the main task of the Division was to manage the letters written by ordinary people to the central leadership and receive petitioners, acting as secretaries.[6]
It is not until many many years after that the petitioning system expanded its organization to the various levels of state organs, and extended functionally to domains like democratic supervision and civil rights remedies. In June 7 1957 the Government Administration Council (the later State Council—translator) promulgated the “Decision on how to Process Letters from the People and Reception of the People.†Between 1954 and 1957 due to the problems caused by the Collectivization and Anti-Rightist Campaigns, the total number of petitions increased tremendously, more than 50 institutions or departments of the central government or party committee have established petitioning organs. According to statistics, the number of processed petitions in 1956 by the Secretary Office of the State Council was approximately equal to 2.5 times the number of cases processed from July 1951 to June 1954, and in the time period between January 1957 and September the number doubled compared to that of the same period in 1956. The increase in number of petitions occurred in organs of all regions and governmental departments.[7] By September 1963, the CCP Central Committee and the State Council jointly issued the “Notice on the Strengthening of the Management of Letters and Visits from the Peopleâ€. Up to this point we can say that China’s petitioning system has been formed. However, at that stage, the status of the petitioning system was not yet a prominent one.
After ten years of turmoil of the Cultural Revolution, between 1979 -1981 petitioning once replaced the position of the core political system in various dispute resolution systems, becoming the de facto central link of the Chinese constitutional framework. After the Third Plenary Session of the 11th CCP Central Committee, hundreds of millions of citizens wrote letters or petitions requiring the rectification of miscarriages of justice occurred in PRC’s history and the implementation of the Party’s policy which supported the rectification. The petition organs of the central government, in the year 1979 alone, processed up to 1.27 million letters of visits; at the end of the same year, the central government has also set up a “Petitioning Problem Processing Teamâ€, deploying about 200,000 cadres in the country to deal with petitions and resolving historical issues (generally “political issues†are formed after PRC’s foundation, especially during various political campaigns and the Cultural Revolution—translator).[8] It is unforeseen the number of petitions and petitioners, as well as the number of cadres the state employed to process such petitions in the three-year period between 1979 and 1981.
It was during that period that petitioning became the dominant form of the solution of disputes. In that period when the rectification of miscarriages of justice became the symbolic characteristic of social life, the majority of disputes were essentially resolved in the petitioning process. At that time, the role of the executive, judicial and other state dispute settlement organs, were often limited to complete the necessary legal procedures for petitioners following the decision or conclusion made by the petitioning organs of the Party, the former became a puppet or a rubber stamp to the latter, dispute settlement system provided by the Constitution became in reality the auxiliary system to the petitioning system. This rare case in history occurred primarily between 1979 and 1980.
The above description demonstrates that under the “Common Agreement,†the Constitution of 1954, the Constitution of 1975 and 1978 the dominant position of the core political system gradually degraded within the constitutional framework, so that in 1979, 1980, the auxiliary system of petitioning actually obtained the dominant status through reciprocal translocation with the core political system. After 1981, the petitioning system no longer occupied the dominant position within the constitutional framework and its dispute resolution function has also been shrinking, but it has been held in the framework of our Constitution with great importance even today.
Faced with this situation, it is inevitable to ask why was the petitioning system, not even the most important one within the auxiliary system, able to leap once to a de facto status even higher than the judiciary system in history and occupying such important position within our constitutional framework even today. I think, historically speaking, there are profound social political reasons why the status of the petitioning system in the framework of our Constitution has become so prominent, including the following several kinds:
1) Fordecades, the power in China has always been held in the central government andthere are scare local means and resources to resolve disputes. First of all,China has adopted a unitary system; the form of state structure has pushed the powerto be concentrated at the central government, only the central government,higher entities can solve problems that local or lower levels can’t solve. Accordingto the positioning of the Preamble to the Constitution and the Article 3 of theConstitution, China is an “unified multi-ethnic country,” “the division offunctions and powers between the central and local state organs is guided bythe principle of giving full play to the initiative and enthusiasm of the localauthorities under the unified leadership of the central authorities.” Evenif according to this provision this kind of system should be considered as a unitarysystem of democratic centralism, but since the “unified leadership of thecentral authorities†is the prerequisite and basis for “full play to theinitiative and enthusiasm of the local authorities†in reality the degree ofconcentration of power is even higher than a centralized unitary system statein general. The implementation of the unitary system added to the vastterritory and large population of China, makes the degree of powercentralization inevitably higher than normal. Secondly, the long-term implementation of the planned economic systemalso contributed to the concentration of power in the central government andhigher level authorities. As late as the adoption of the Seventh Amendment ofthe Constitution in 1993, China had always operated under the planned economic system;the characteristics of the planned economic system require the social andeconomic resource allocation be fundamentally governed by central stateagencies. Therefore, planned economy is the economy of power, more precisely,planned economy is the economy of the central administrative power
Itis common sense that whoever has the power concentrated in his hands holds thekey to solving problems. Evidently, in a highly centralized system, one wouldfind the easiest way to solve disputes in the lower or basic level through thecentral or higher level authorities.
2) There isa long-term lack of adequate and effective protection for many basic civilrights in the history (of the PRC—translator), there are severe tensionsbetween local officials and ordinary citizens, while abusive restrictions imposed on the field of free speechand press cause partial and untimely news coverage of serious local conflictsand malpractice, making almost impossible for the general mass to supervise thebehavior of public institutions and officials through news media that whenencountering injustice can only ask for help from higher level authorities. Inthis case, it is difficult to solve the problem through democratic channels andthe rule of law at the local level. Since the exposure of the problem is the prerequisiteto the solution, when citizen’s rights and freedom in the field of free speechand press are not fully protected, it is to mean that media will not be able topublish articles revealing misdeeds of the local public institutions andimportant officials, that malpractices cannot be exposed to the public andproblem solved locally, it is only at a higher level, sometimes as high as thecentral government that there is some greater hope for the solution.
3) There isa high degree of allocation plan of political resource, the NPC representativesand leaders of local organs of state at all levels are not elected incompetitive electoral system by attracting the electorates’ votes, but to alarge extent by top-down decisions. In this system of political resourceallocation, NPC representatives and leaders of local state organs at all levelstend to react insensitively to the desires and preferences of the citizens,voters or the general public, or can even take an indifferent attitude sincethere will be no significant political consequences, causing the lack ofrepresentative function and representativeness within the NPC system. This hasdetermined the insufficiency of interest expression function and consultativedecision-making function of the NPC at various level; it has also caused theleaders of local state organs to first consider the wishes of the higherauthorities instead of the voters’. A high degree of political resourceallocation plan is a match to the characteristics of exercising a high degreeof centralization on economic allocation of resources under the plannedeconomy.
4) It isdifficult for judicial and procuratorial organs to exercise judicial power andprocuratorial power independently, judicial authorities lack a public image of neutralityand fairness and public trust of their investigations, it is especiallydifficult to implement justice in the lower-level administrative areas. The”Common Agreement” of 1949 only provided to “establish laws and rulesto protect the people, build a judicial system of the people,†withoutmentioning the issue of independent exercise of powers by judicial organs. Northe 1975 Constitution or the 1978 Constitution mentioned such issues. Article78 of the 1954 Constitution provided that “The People’s Court isindependent of the trials and only obeys to the law,†but the reality is that independenttrial has not been implemented. Moreover, since 1966, the Constitution in thenext 10 years failed as a whole.
Article126 of the current Constitution passed in 1982 provides: “the people’s courtsshall, in accordance with the law, exercise judicial power independently andare not subject to interference by administrative organs, public organizationsor individuals.” Article 131 of the Constitution had similar provisions onthe Procuratorate. These provisions left room for the ruling party to lead judicialinstitutions and the NPC’s supervision on the Judiciary, while rising thecomplex issue of how to manage the relationship between local party organs, NPCand judiciary institutions in accordance with the Constitution. The 1982Constitution has been adopted for nearly 28 years, but regarding this issue weare still in the process of difficult exploration, the independence necessaryfor judicial institutions to exercise its function and powers still lacks a system-specificprotection, the Judiciary branch as a whole has not been capable of establishingsufficient authority. The authority of the Judiciary branch, fundamentallyspeaking, does not depend on the size of the coercive power that judicial organshold in their hands, but by the level of independence and fairness of their decision,it comes from the conviction in the heart of the citizens.
When therule of man rather than the rule of law becomes the general political setting, thesupremacy of the Constitution and laws cannot be effectively established, considerablenumber of social disputes cannot be resolved on the basis of the rule of lawand within the framework of the legal system, then they will in turn seek forremedies from the petitioning system which carries strong characteristics ofthe rule of man. In many cases, petitioning is to ask for top to bottominterventions by powerful high-level authorities or even central state organsand its functionaries, going beyond the statutory powers and legal procedures. Oneof the characteristics of the rule of man is the existence and exercise of publicpower beyond the law. By itself, it seems that greater extrajudicial powerwould make the resolutions to specific disputes come easier, but institutionallyspeaking, the resulting negative impact would be invariably greater than itspositive meaning, it is a truth repeatedly proved by human experiences ofmanaging state affairs. The rule of man can sometimes resolve disputes, but therule-of-man approach leads to even great number of disputes; the petitioning systemthus is itself a manufacturer of large number of petitions. Moreover, whetherthe problems involved in a petition can be solve, to a large extent, depends onthe degree of concern and intensity of pressure exerted by petitioners. Often thehigher petitioners brought the problems to the greater chance they have ofsolving them. “Making no trouble no solution, little trouble little solution,big trouble big solution,†this type of folk doggerels in their specific sensecan truly reflect the reality of the situations in the society. The existenceof such petitioning mechanism is per sean important cause for the formation of large number of petitions.
Thirtyyears have passed since the early 1980s, direct driving forces and causes thatdetermine the formation and development of the petitioning system have haddramatic changes, but in general no fundamental changes deep down in the rootoccurred. Among the traditional motivations that caused the expansion of thepetitioning system, the economic system is the only one that has hadsignificant changes. Planned economic system is practically abolished; themarket economic system has been largely in place, despite the fact that in ourcountry the degree of state intervention in economic life is much higher comparedwith Europe and the United States.
In addition, ourConstitution established at the end of the last century the general directionof “implementing the rule of law and building a socialist country under therule of law,†which morally and practically denied the traditional statecraftbased on the rule of man. It also gives a complete change of scenario to thedirection of the elaboration of the core political system. Of course, in thepractical legal life, problems like: to what extent is the rule of man denied,what part of the content or practices of the rule of man are specificallyrejected, how to demarcate the boundaries between the rule of man and the ruleof law, will all be topics of long-standing controversy. But it seems that wecan believe that the results of debates will come to agree on that the boundariesof the rule of man concept will be gradually extended, the boundaries of theconcept of the rule of law gradually shirked, and a considerable portion of petitioningand processing activities will be excluded from the scope of the rule of lawconcept. In these 30 years, factors belonging to the core political system havealso had improvements or modifications, but these improvements andmodifications only contributed to more comprehensive forms and morestandardized operating procedures, there is less substantive changes of thesystem, there is even some deterioration in certain aspects, such as the competitivenessin the election of the NPC representatives at various levels which has onlydecreased instead of increasing in the past 30 years.
(Pix (c) Larry Catá Backer 2012)
(Zhiwei Tong, PIX (c) Larry Catá Backer)
The Zhiwei Tong (???) Series focuses on translating some ofProfessor Tong’s work on issues of criminal law and justice in China, mattersthat touch on core constitutional issues. Each of the posting willinclude an English translation from the original Chinese, the Chinese originaland a link to the original essay site. Many of the essays will includeannotations that may also be of interest. I hope those of you who areinterested in Chinese legal issues will find these materials, hard to get inEnglish, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi fortheir able work in translating these essays.
(Pix (c) Larry Catá Backer 2012)
Part XXV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part III)
First Published March 19, 2011
Part I of this essay was published at Part XV—Zhiwei Tong (???) Series: The Petitioning System and the Constitution of China):
Part II of this essay was published at Part XXIV—Zhiwei Tong (???) Series: Petitioning System and the Constitution of China (Part II).
* * * * *
5)Strategies to solve problems created by petitioning
What are the petitioning problems? The term “petitioningproblems†mainly refers to the set of pressure and stress brought about bypetitioning visits conducted by citizens, legal persons or other organizationwithout following statutory dispute-resolution procedure and by receptions andprocessing of petitioning visits by relevant public institutions that wouldcreate damages to the status and authority of the core political system.
Petitioning problems have two major forms: one form consists of the pressure and stress brought about by visitsconducted by citizens, legal persons and other organization going around ordisordering statutory dispute-resolution procedures; the other form consists ofthe pressure and stress caused by the inefficiency of the core political systemwhich forces problems, that should be solved by the main channels of the coresystem, to rush into the petitioning channel and seek remedies through thepetitioning system. The cause for this type of pressure and stress can bedescribed by “overload for auxiliary system as the core system lacks relevantfunctions.†Therefore, the expression “solve petitioning problems†in thisarticle refers to the elimination and resolution of the two above mentionednegative forms of petitioning, it does not mean to eliminate petitioning orreception of petitions. In reality, it is possible to find to some extentphenomena regarding petitioning similar to those mentioned in this article inany countries under the rule of law nowadays, the difference is that people usedifferent language or terms to conceptualize these phenomena. Therefore,petitioning is normal, the auxiliary function of the petitioning system and processingof petitions without harm to the core political system can strengthen theconstitutional framework.
Radically speaking, the only way to solve petitioningproblems is to build and improve the functional capabilities of the core system;there are no better ways beside this.
In order to enhance the functional capabilities of ourcountry’s justice-promotion system as a whole, it is necessary to form specificconsensus on its reform and construction, based on the clear understanding ofthe relationship between the core system and the petitioning system.Admittedly, in past decades, different mechanisms were applied and coordinatedinappropriately during the justice-promotion process guided by the core andauxiliary systems, causing conflicts and competition between the core andauxiliary systems. Opinion holders with different views on the petitioning systemhave all noticed the above point, and have all tried to provide a prescriptionof their own to solve petitioning problems.
Some researchers of the petitioning system have providedmany prescriptions, but generally these prescriptions do not look verysymptomatic. As stated, expansionists hope to elevate the legal status of andadd functional power to petitioning organs in order to solve disputes broughtthrough petitioning. If this method of strengthening the petitioning system isimposed, then perhaps it will relatively speaking solve accumulated disputes inthe short run with efficiency, but measures of this type will certainly inducemore dispute-resolution seekers to present their problems to the petitioningsystem instead of statutory dispute-resolution systems, causing even morepetitions. Moreover, adding more functional power to petitioning organs whichhas a zero-sum relationship with the core system will reduce unavoidably thepower and justice-promotion function of state organs and their working bodiesestablished in accordance with the Constitution and laws. As regardingabolitionists, despite their clear and courageous solution proposed in regardto petitioning problems, their proposals are unattached to the reality ofcontemporary China, or might not even be pertinent to the need of future China.In the long run, the presence of auxiliary system is necessary and beneficialto the stability of the core political system and its full exercise offunctions. The fact that many countries under advanced rule of law haveparliamentary supervision organs or official reception organs for appeals bycitizens, explain to a certain degree my argument.
Seeing fromthe result of researches so far, part of the suggestions by holders ofreformist view on the petitioning system has better reference value than otherschools of thoughts. Reformist scholars proposed that in order to solvepetitioning problems, it is not only necessary to reconstruct and renew thepetitioning system, but also necessary to reconstruct and renew the entiredispute-resolution and remedy-seeking mechanism. Their reforms include: unifycurrent petitioning organs that are too scattered by establishing a nationwidecomputer network system; establish parliamentary supervision or executivesupervision system similar to foreign countries in order to coordinate thepetitioning works in various departments of various regions; amending the lawto expand the scope of administrative reconsideration and administrativelitigation; establish a number of specialized administrative tribunals,specialized in disputes such as land expropriation, housing demolition, givefull play to the role of NPC representatives in connecting with their voters.[i] Other reformist scholars propose to considerthe reforms of the petitioning system in association with the construction ofnational constitutional politics and political modernization by setting themedium-term policy for the temporary solution of petitioning problems as“strengthen the responsibility and ability of judicial organs at various levelsto receive complaints and appeals by citizens as well as to process suchcases,†and by setting the long term policy for the fundamental solution ofpetitioning system as “abolish petitioning organs in all departments ofgovernments at all levels, concentrate petitioning to the NPC of variouslevels, supervise the work of thegovernment, court and the procuratorate through the NPC and establishsystematic organizations that express interests of the people.â€[ii] These understandings showthe comprehensiveness of reformists’ observation and awareness. Their proposalfor reform is better targeted and has stronger feasibility, it also includethoughts to enhance the construction of the legal system in order to reduce thereliance on the petitioning system in the process of promoting justice.However, it is probably due to the difference in academic emphasis that theyhave not conducted a division of the Chinese constitutional framework into thecore political system and auxiliary system, nor have they discussed therelationship of the petitioning system to the core system as part of theauxiliary system. Due to this reason, they have never well explained theinternal connections between the construction and reforms of the core systemand the development of the petitioning system, thus no systematic andconstructive opinions were proposed regarding the management of therelationship between these two systems belonging to two different legalstatuses.
From thepoint of view of the constitution and core-system auxiliary theory, regardingthe reforms of the petitioning system, whether at present time or long term, wecan only develop them towards the direction of the enhancement of the corepolitical system. Perhaps, comparatively speaking this is the most suitable wayto solve petitioning problems and enhance fundamentally the constitutionalframework of our country.
But what concrete steps must befollowed to advance the construction or reform of the core system in order toradically solve petitioning problems and enhance the function of theconstitutional framework? Evidently, there is nothing easier than providing anoversimplified prescription, and there is nothing more meaningless than doingso as well. I think, speaking for jurisprudential researchers, knowing what todo concretely is not important, it is essentially important to make a proper estimationon the direction of development of the interactive relationship between thepetitioning system and the core system in association with the specificity andlong term necessity of the conditional framework of China. In this regard,since I have already made similar discourses, in this article I would only liketo express the following few points as reference for relevant organizations andpeople who concern about the issue:
1) The application and reform of thepetitioning system has to be considered under the framework of theconstitution. Under this framework, the petitioning system is a part of theauxiliary system; it is subordinate to the core system; its construction orreform has to obey and serve to the construction and reform of the core system,its relationship to the core system should be arranged in accordance with thisunderstanding. If this logic is correct, then we cannot stay out of suspicionregarding the appropriateness of some expressions that are still currentlyquite popular. For example, the reasonability of the expression “legalizationof the petitioning system†that appears often on media is very muchdoubtful, because this expression is nodifferent than elevating the petitioning system , a component of the auxiliarysystem, to the same level as the core political system. But the question isthat why can we not enhance the functions of the constitutional frameworkthrough the construction and improvement of the core system rather thanelevating the status of the auxiliary system? Moreover, proposing the “legalizationof the petitioning system†is in reality to change the power distribution amongstate organs at various levels provided by the current constitution, therefore,the implementation process of such proposal would also be the process in whichthe core system is weakened or harmed. Other examples are the expression “MagnaReception†and the method of establishing joint petition-processing organsunifying power of two or more regional state organs in order to solve disputes.[iii] These actions areagainst the spirits of independence of the court and procuratorate, and willresult in the strengthening of the auxiliary system while weakening the coresystem.
2) The fundamental way to solve petitioningproblems is to construct, reform and improve the core system as well as toelevate its justice-promotion functions. The construction, reform andimprovement of the core system involve many issues regarding specificinstitutional construction. Amongst, the most important topic is to elevate thelevel of civil rights protection, especially the protection of private property,free speech and publication. Regarding the freedom of speech and publication,for example, Premier Wen Jiabao demanded in the “Government Work Reportâ€delivered on the Third Meeting of the Eleventh Session of the NPC : “to createconditions for the people to criticize and supervise the government , at thesame time give full play to the supervisory role of the news media, let thepower run under sunshine.â€[iv] This is a remarkableexpression, but these are only words spoken by him on behalf of the highestexecutive organ of the state, in reality, all public organs should be under thesupervision of citizens and news media. It should be created a condition inwhich media can, on legal basis, publish reports criticizing or even revealingthe dark side of local public organs and their leaders, related disputes shouldbe resolved through judicial ways when they arise.
The solution to petitioning problems has to rely on the construction ofthe structure of the form of democracy and distribution of legal powerssuitable to the characteristics of the market economy. Market economy is asystem in which the market plays the basic role in the distribution of economicresources in a society, in correlation, the principles of political and legallife should be consistent with the principles of economic life, that is to saythe distribution of political and legal resources is done through the competitionas that of the market. This task contains the following contents:
1) Constructionof democratic institutions within the ruling party. Democratization of politicalparties is the prerequisite and basis for the democratization of the state, itis also the political basis on which state organs at various level caneffectively reflect popular opinion. According to the principle that thedistribution of political and legal resources is consistent with thedistribution of social economic resources, members of the committee leadershipat various levels of the ruling party and candidates nominated for leadershippositions of state organs by the ruling party should all go through competitionbefore becoming elected , every ordinary party member should have rights todirectly elect members of the party leadership and participate in the electionto determine party’s nomination of candidates for leadership positions of stateorgans.
2) Legalization,standardization and procedure establishment of the relationship between Party’sorganizations at various levels and corresponding state organs. The report ofCCP’s Seventeenth Assembly emphasizes that the Party should maintain the basicpolicy of running the country in accordance with law, elevate the ability torule in accordance with law, “promote institutionalization, standardization andprocedure establishment of socialist democratic politics in order to providepolitical and legal protection for the continued stability of the Party andState.â€[v] In this regard, the main problem we face nowis that there is no constitutional or specific legal provision that govern the relationship between the organs of theruling party and state organs, this is an important problem that should besolved immediately.
3) Directand orderly competitive elections of NPC representatives at all levels, thestanding committee, and main leaders of the Government, Court and Procuratorateat all levels. The reason to form this competitive electoral system is to impelthose who hold and apply public authority to be responsible to their voters andprotect these voters with law. The first action to be taken is to holdconcretely competitive elections of leaders of local state organs, byimplementing the current “Local People’s Congress and People’s GovernmentOrganization Lawâ€, making single-candidate election rare exception or isolatecase.
4) Althoughthe power distribution model between the central government and localgovernment as well as between superior levels and inferior levels of stateorgans belong to the scope of national organization, it is determined by thelevel of democratization of its society. In this regard, conducting a reformcharacterized by the transfer of power towards lower level of the government isan important condition to the solution of petitioning problems.
What has the most directmeaning to the solution of petitioning problem is to elevate the authority andthe public trust of judicial organs, the court especially. Authority and publictrust of judicial organs are the soft resources accumulated through years ofindependent exercise of functional power. In the past 30 years after the“Opening Up and Reform ,†the judicial authority and public trust in ourcountry has both gained and weakened, as a whole it is still in seriousshortage. This situation of the judicial system is not only a huge potentialthreat to the stability of the nation, but also a fundamental cause of theformation and development of petitioning problems. Justice in our country needsmostly an image of independent exercise of functional power and neutrality.Therefore, the leadership of the ruling party should be able to notice thedifference of the judiciary branch compared to the Legislature and theExecutive, and change the myopic utilitarian attitude.
3) Before the construction and reform ofthe core political system has reached effective results, the constitutionalframework of our country has no other choice but to rely somewhat on thepetitioning system. It is impossible to solve petitioning problems without theelevation of the level of civil rights protection, democratization within theruling party, competitive election of NPC representatives and leaders of stateorgans at various levels, as well as effective protection of judicialindependence. It is thus also meaningless to discuss the weakening of thepetitioning system in such circumstances. In this situation, relying on thepetitioning system and allowing it to interfere with the tasks or sometimessubstitute the function of the core political system are objective necessitiesindependent of human will.
Of course, when forced to rely somewhat on petitioning system, theprinciple is that harms to the authority and the status of the core systemshould be maintained at a minimum level. In our country, there is an unbalanceddevelopment of the core political system geographically and also in terms oftime, therefore , in some regions, at a certain time, it is not absolutelyimpossible for individuals in charge to reduce the harm of petitioningreception and process to the core system close to zero while managing to obtainsocial justice.
4) Undoubtedly, based on the developmenttrend of the constitutional framework in our country, the petitioning systemshould soon dilute or demise. Most of its powers, or even all of its powersshould be gradually overtaken by the core political system. The ChineseConstitution has not only created the core political system, it has alsoconferred all powers entrusted by the people to various bodies included withinthe scope of the core system, these bodies are the National People’s Congressand local People’s Congress.[vi] Therefore, according tothe Constitution of our country and principles it provided, the core politicalsystem bears the entire constitutional responsibility in promoting justicesince the very beginning; therefore it should assume the entire function of thenational constitutional framework. Turning our sight to the auxiliary system,although the preamble of the Consecution has confirmed that “the Political Consultativewill exists and develop for a long period of timeâ€, the Constitution has nevergranted the Political Consultative Committee any state power; as regarding thepetitioning system, the Constitution has not even mentioned the word “Xinfangâ€(petitioning), nor any law has had a provision mentioning the word. Therefore,seeing form the view of the Constitution and laws, it is improper to attributetoo much justice-promotion functions to the petitioning system.
The dilution of the petitioningsystem should be conducted gradually. The first step is to abolish the reception of petitionsregarding cases ruled by the second instance or retrial of the court.Petitioning regarding legislative bodies should be done through voter receptionpath by NPC representatives. Petitions regarding executive organs generallyhave greater reasonability, they may exist for a much longer time, thereforethis part of discussion is postponed till later.
5) In order to obtain the best efficacy of thecurrent constitutional framework, a clear placement of the relationship between thearrangement of the petitioning system and the reform and construction of thecore system must be made at a comprehensive scale. For more than a decade, whathas been missing in the research of the petitioning system and management ofpetitions is the clear placement of the petitioning system as part of theauxiliary system, based on the division of the core and auxiliary system withinthe framework of our Constitution. Unclear placement of petitioning system hascaused uncoordinated or even conflicting situation between the development ofthe petitioning system and the reform and construction of the core system;[vii] it has also left to thepublic impressions an image of unpreparedness, partiality and confusion ofrelevant parties. In order to avoidrepeated occurrences of this type and change the passive environment regardingpetitioning problems, it is extremely necessary to place the petitioning systemin the auxiliary system and limit its function within the auxiliary system.This is a question of understanding or question of theory.
On theone hand, whether in our country or any other country, the core system aloneshould be capable enough to solve the majority of social disputes and realizethe level of social justice that matches the stage of its social development; onthe other hand, it is very difficult for the core system of any country tocarry the entire load of responsibility of promoting social justice without thesupport of the auxiliary system. Conjecturing with common sense, if a countryover-relied on the auxiliary system, then it means that this country’s coresystem is not strong and efficient enough; it has to be further strengthenedand reformed systematically. Associating this with the reality in our country,if there is need to strengthen the constitutional framework in China, the firstconcern should be on the strength of the core system, only after consideringthe core system that it would secondly come to consider whether to seekassistance form the petitioning system or evaluate whether it should beenhanced or not. Same reason, if the constitutional framework of our nationdemonstrated great demand for petitioning system, then that demonstration isonly the superficial appearance; it is covering the reality that the coresystem necessitates urgent enhancement and reforms.
Theauthor thinks, the justice-promotion model based on the proper placement forboth the core system and petitioning system should guide the future of reformof the petitioning system. The characteristic of this model is to determinewith clarity that the core system is the main body in terms of structure andfunction in the constitutional framework; the petitioning system and othercomponent of the auxiliary system are only at a position of assistance. Theformer is an institution provided by the Constitution and laws, the latter isnot provided by the legal system thus extrajudicial and subordinate to theformer. Under this model, the connection between the core system andpetitioning system should be linked by normative documents lower than statutorylaws, for example administrative regulations, regional regulations and judicialexplanations. It can be said that this is the most suitable model to thecurrent constitution and relevant laws of our country, and the only model thatthe author can agree with as a supporter of the core-system auxiliarytheory.
6) It is necessary to reform petition managementmechanism. The direction of the reform should be pointed at the elimination ofthe harms the petitioning system creates to the authority and efficacy of the coresystem. According to the provisions and spirits of the Constitutions and laws,the role of the core system and petitioning system is very clear, that is: theformer is the main body of the constitutional framework, the latter issubordinate to the former; the former is recognized by the Constitution andlaws, the latter is subordinate to the auxiliary system established bynormative documents inferior to laws and the Constitution. However in practice,the difference of status and legal boundary between the core system andpetitioning system are often neglected in our country, causing the formation ofa confusing mixture of the two systems, and in the process of justice promotionthe two systems sometimes benefit mutually and sometimes result in zero-sum game.The consequence is: on one side the lack of efficacy of the core system causesthe birth of a large quantity of petitions, resulting in the over-reliance onthe petitioning system when seeking justice; on the other side the petitioningsystem complements the functions and efficacy of the core system, however itharms and weakens the core system when providing complementary assistance inimplementing social justice.
Under the current petition managementmechanism, institutional elements of the petitioning system that have actuallymade their way to the scope of the functions of the core system generally havea zero-sum relationship with the core system. During the procedure of justice promotion,the competition between the two systems is also of zero-sum nature.
Following the thinking pathdescribed earlier, it is possible to divide logically the interactionalrelationship of the core system and petitioning system into two models: one isthe “contained and bounded†model, in this model, although the establishment ofpetitioning organs does not have legal basis, there are however administrativeregulation, regional regulation and other normative documents that serve asnormative basis, activities of the petitioning organs in this model fullyrespect the status and power of statutory organs; the other one is the “wildand confusion†model, its maincharacteristics are the establishment and use of extrajudicial organs which go aroundstatutory organs and procedure in order to solve petitioning disputes. Thetypical behavior of the “wild and confusion†model is the establishment ofpetitioning organs that possess powers even beyond state organs without anynormative basis. This behavior generally harms the functions and powers ofstatutory state organs.[viii] In the “contained andbounded†model the petitioning system provides complementary and auxiliaryfunctions to the core system. In the “wild and confusion†model, however theeffect of the petitioning system has two sides: it does promote justice, but atthe same time it has the side effect of harming the status and authority of thecore system. We can see this kind of two-sidedness during certain jointreception of petitions by state organs. For example, as reported, in July 132008, the party secretary and major of a certain city, along with other eightmembers of the city leadership “hold a joint conference to study fourteen grouppetitions. They listened to individual report of each petition, analyzed themindividually and provided solution specific to each petition. At the end allfourteen petitions received clear solution methods and assignment of officialsin charge of the solution.†[ix] In the context of thereport, it looks like they have not only processed one litigation, the eightmembers of the city leadership might include also the head of the city courtand procuratorate. This is to say that this type of joint conference is notonly a joint operation between the Party and the local administration, it alsohas the nature of joint operation that includes the Party, local administrationand judicial organs, it is a super-joint operation. However, a temporary jointorgan like this, is not consistent with at least the following principle andspirits of the Constitution: rule of low, constitutional and statutoryassignment of powers, independence of the court, independence of theprocuratorate. Therefore it is not an exaggeration to conclude that this typeof extrajudicial organization has harmed the authority and status of the coresystem when processing and receiving petitions.
Hence, at least from what isseen in the reality of the current stage, what first faces the reform of thepetitioning system is to eliminate organs whose powers and functions arewithout legal basis and whose processing of petitions harms the core system. Inthis regard, what is often seen are instances when higher level officials issueorders beyond their statutory power and when organs without statutory basis providefinal judgment to disputes ignoring the function and procedure of state organs.These actions are against the principle of the rule of law.
If politicians and legalists in our country can have a moreprofound understanding on the zero-sum relationship between the petitioningsystem and core system, and reform it appropriately considering the overallenvironment, perhaps it will not be particularly difficult to radicallyeliminate or ease petitioning problems in the society.
(Pix (c) Larry Catá Backer 2012)
Endnotes
[ii] Same as note 14 in part II, Yu Jianrong. ???[14],?????
[iii] In recent years, beside the Committee of Politicaland Legal Affairs of local Party Committee, there are also petitioning organsthat jointly represent local administration, court and procuratorate withdifferent names such as “Office of Stability Maintenance,†“Office ofPracuratorial Supervision†or “Office of Coordination.†These offices oftenprocess petitions of extensive importance with substantial decision and thenenforce the decision in name of the court. This is evidently against provisionsof Article 126 of the Constitution regarding t
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