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'Judicial independence should come first'
(Beijing Review)
Updated: 2005-11-15 09:36
Peking University law professor He Weifang has made a name for himself as an
activist calling for reforms of the judicial system in China.
"The petition
system is one with inborn relations to the rule of men." -- He
Weifang |
He believes that judicial independence should be the top priority for China's
leadership. A system must be established outside of legislative and executive
branches so that judicial powers are not tainted by unethical influences,
according to the professor, and there must also be a limit to the appeal process
that can continually overturn rulings.
Professor He also believes the petition system does more harm than good in
solving legal disputes.
Beijing Review: Against China's social backdrop, what kind of role is the
petition system playing to ease social tensions?
He Weifang: I think the recent attention given to petitioning is more about
how to press petitioners to give up rather than how to solve the problems of
each individual.
As far as I know, local governments have sent a large number of interceptors
to Beijing, which is obviously not aimed at solving problems through the
petition system.
I think petitioning is a comprehensive social problem. It is definitely
abnormal or even unimaginable for a country pursuing rule of law, such as China,
to have people from all over the country travel to the capital to make
injustices known to state leaders.
The major reason for this is our seriously flawed judicial system, which is
unable to effectively solve social problems. The function of the court system is
none other than to redress grievances in a timely manner.
But if the judicial system was under external interference, it would fail to
judge cases according to law fairly and independently. The best example to
illustrate the weaknesses of the judicial system is the unresolved petition
cases about resettlement disputes.
The resettlement initiatives backed by the government usually deprive
ordinary people of an equal opportunity to bargain. Then the only way out is to
resort to the legal system. However, courts have failed to judge these cases
independently. Instead, they have been reduced to a proxy of local governments,
which adds a mixture of judicial power to administrative power.
Recently, the Supreme People's Court issued a judicial interpretation on
resettlement, which says courts would refuse to accept any litigation involving
resettlement issues. This act has ended many people's last hope.
Of course, those who are unsatisfied with compensation arrangements can still
appeal to local governments. But if the government is the initiator of the
resettlement, the effort will be in vain since the government is both the umpire
and player. Therefore, undercompensated people have to go to higher-level
governments or even the central government to let their injustices be known.
How do you view the relationship between the petition system, China's social
and cultural background and the evolution of the legal system?
China's traditions and political culture demonstrate that we usually rely on
a wise monarch or a great leader to achieve fine governance. This kind of
tradition is deep-rooted.
Chinese history shows that people were afraid of power sharing due to the
suffering it brought them by corrupt local officials. The only hope was that a
wise emperor would deliver justice to them.
The difference is quite vivid when comparing China with Western countries,
especially Britain. In Britain before 1066, the king also assumed such a role.
That's why the king was deemed the source of justice.
Commoners who were wronged also put their hope into getting the king's
personal attention. However, in the process of the king sending officials all
over the country to try cases and solve disputes, professional knowledge
gradually took shape. A stable case-law system then came into being. That meant
the judgment of cases would strictly follow legal precedents. The operation of
the legal system does not only solve an individual case but also offers a legal
basis for ruling on cases. In other word, the same principles should be applied
to similar cases. Therefore, once a set of rules are in place, the judicial
system is bound to work independently, using its own logic to judge cases
without being influenced by any external power.
The traditional Chinese governance structure is totally different. In China’s
history of more than 2,000 years, there had been no court in the modern sense
until the turn of the 20th century. The separation of executive, legislative and
judicial powers that has been prevalent in Western countries was never known in
Chinese society.
In judging cases, officials are more concerned about solving an individual
case than forming a set of strict rules. Therefore, a sound governance
structure, a tradition of judicial independence or professional legal knowledge
failed to be developed. As a result, whoever could exert more pressure over
decision-makers would eventually reap a more favorable result.
Do you believe there is a contradiction between the petition system and
China's goal to build a society ruled by law?
The petition system seems to have maintained hope for disadvantaged people
who have suffered injustices, but as a matter of fact, it is like drinking
poison to quench a thirst. Instead of being devoted to constructing an
independent legal system and enhancing its justice, we always try creating
exceptional precedents.
One event that got enormous media coverage in 2003 was that Premier Wen
Jiabao helped a migrant laborer get back defaulted wages. Despite the positive
coverage, the side effect of it was tremendous.
Though our premier loves his people, he can only help no more than a handful
of migrant workers get their wages back. The side effect was that ordinary
people began to believe that as long as they got the chance to meet the premier
or the president, they could also have their problems solved.
This incident has spurred on more petition efforts. In the process, a
reliance or even worship of state leaders has developed at the cost of building
and perfecting the legal system.
After all, we endeavor to build a country ruled by law, rather than one ruled
by a wise leader. The petition system is one with inborn relations to the rule
of men. In a society dominated by the rule of men, even a wise monarch can
easily evolve into a big tyrant.
Do you believe the petition system could serve as a decompression valve to
ease social tensions or even as a transitional system in developing rule of law
in China?
I personally believe that more pressure needs to be accumulated to generate a
new system. In reality, however, what we do is to frequently release the
pressure that could act as the catalyst to form a new system.
Sun Zhigang was a newsworthy person of 2003. The 27-year-old garment designer
was detained by police in southern Guangzhou City for failing to bring his ID
card with him and then was brutally beaten to death while in custody.
Due to the great grievance involved, legal professionals, including myself,
have advocated building a system that will review legal provisions that are in
violation of the constitution. Under such a system, any provisions that go
against the Constitution and deprive people of human rights could be scrapped.
However, the eventual result was that in June 2003, the State Council
announced the abolishment of the detention and repatriation system. Then we saw
praise for the new administration's populist approach that permeated the
Internet.
But the act has released all the pressure that was building up to accelerate
more overhauls. Thus a good opportunity to set up a new system to review the
violation of constitutional rights was missed. Petitioning has faced similar
issues [with authorities stepping in to superficially solve them].
Just now you mentioned problems of China's judicial system. How should the
ongoing judicial reform be carried out?
The first thing is, without a doubt, developing judicial independence. That
is to say, when a court is trying a case, the only basis should be law, rather
than suggestions of the Party or people's congresses.
Of course, it is not easy to achieve independence, which requires great
efforts to free courts from local governments' control of their personnel and
financial resources.
Secondly, the ethics of judges and neutrality in judging cases are also
important factors. The unethical deeds of judges will be barriers to the
independence of the judicial system.
In the process of exerting judicial power, judges are not to favor one side
over the other for the sake of his or her own benefits. In order to guarantee
neutrality in judging cases, courts must also be independent from upper courts.
The neutral attitude itself can help to avoid possible grievances and conflicts
in the litigation process.
When talking about concrete cases, it is difficult to tell what kind of
judgment is fair. As the society becomes more and more complicated, the judicial
process can involve a tricky balance of interests.
Many times, the neutral attitude of judges will play a vital role in solving
a case fairly and reducing people who resort to means outside of the judicial
system, such as petitioning.
Thirdly, we should strengthen monitoring of judicial power to press judges to
rule on cases strictly in accordance with the law. The monitoring could be done
from the people's congress at all levels, procuratorates, the media and others.
The problems that now exist could be divided into two categories:
insufficient monitoring and improper monitoring. Insufficient monitoring refers
to the failure to expose corruption in many cases. Improper monitoring points to
the phenomenon of trial by the mass media. And in extreme cases, lawmakers will
try cases, leading to the blending of legislative power with judiciary power.
Some lawyers believe that China's petition system should be maintained on the
ground that China's judicial system is under tremendous strain and plagued by a
shortage of human resources. They say a sudden abolishment of the petition
system would make the situation a lot worse since so many conflicts would turn
to the judicial system. What do you think?
This opinion is unfounded even when considering that the efficiency of
Chinese judges is just one 10th of their American counterparts. Chinese judges
are kept busy every day, but the faulty system renders much of their work
useless. For example, in China there is no ultimate judgment and any ruling
could be overthrown by a decree of higher authority or by certain pressure.
Although China practices the two-instance trial system, the ruling of the second
(final) instance could also be overturned if you bring an official of higher
authority to your side. Thus after the change, the winner of the case becomes
the loser, who might go even further to seek even higher powers to overthrow the
case.
In reality, everyone is aware that there is no absolute justice. The famous
statesman and orator in ancient Rome, Cicero, once said that absolute justice is
absolute injustice. In the trial of some cases, trivial injustices may exist.
Under such circumstances, if those who lose a case stop on the grounds that an
ultimate verdict cannot be changed, the situation would be totally different.
Consider Al Gore’s reaction when the U.S. Supreme Court handed down a ruling in
favor of [George W.] Bush in the 2000 presidential election. He immediately
conceded that he had lost his bid for the presidency, saying he did not like the
ruling of the Supreme Court, but he had to respect it since it could not be
changed.
But it is different in China. As long as you have the ability to appeal, you
can always overthrow an unfavorable ruling. This has encouraged people to try
all means possible for this purpose. Our most ridiculous judicial principle is
“to seek facts and always redress mistakes.” The mistake could be tiny or huge.
If tiny mistakes are worth redressing, then what ruling can be deemed perfectly
fair? This partly explains why so many people in China go to extremes to seek a
favorable ruling by overthrowing the original one. In the process, many people
pay too high a price to correct even trivial injustice. Many people become
poverty-stricken and do nothing but rush about trying to overthrow misjudged
cases. A person might originally suffer a loss of 500 yuan. But several years of
petitioning might cost him or her 10 times that amount in addition to unmeasured
emotional pain. It becomes impossible to withstand the injustice any longer.
This process has also brought other problems. Those who have created minute
injustices have to form a union in a bid to defend their decisions. Many
officials of local governments are bound together, jointly doing everything they
can to avoid those mistakes from being corrected. The essential reason is the
lack of judicial authority. You don’t know what the rules are. The unavoidable
result is a high level of discontent among the public.
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