The Rule of Law in China - Essay Example

The Rule of Law in China There is a ragged line, a line that at times may be entirely indistinct, that connects the rule of law in todays China with that of old Imperial China. At the very least, what Wong calls "value pluralism" (Wong 11) may be said to obtain historically between the old and modern Chinas. In old China, legal considerations dealt with the actual human aspects of particular crimes rather than staying within a particular jurisprudential methodology or criminal code. In new China, this is reflected in a multi-layered system of community, court and policing policies that does not limit itself to the type of received philosophical, political, or positive law principles more characteristic of Western countries and culture. We must keep in mind that "modern" China is a country whose evolution still emanates from an unimaginably rich past that is very much alive after thousands of years. America is only two and a quarter centuries old while China measures her history in the eons. China is modernizing, for good or for ill, but in any case, a more rationalized America has a lot to learn from her. In more practical terms, rational analysis and positive thinking are not the only, nor even the best, tools to determine the contour and correctness of human values. Indeed, I venture to guess rational analysis is ill-suited to the investigation of value matters which are, after all, more instinctual than cognitive, and more emotive than logical. (Wong 12) The laws of a particular country Wong says, are informed by its values, and its values are characteristic of the entire course of its history. America appears to have found many of its values, character traits, and individualism in its revolution against Britain, and in its Protestant background, while Chinas more communitarian consciousness dates back to Confucius himself. (Wong 13) If this is to accuse America of linear thinking when it comes to law, Wong draws the contrast with China even deeper when he adds that Chinas loyalty to its past is not so much or only a preservation or continuation of that past through time. It is more that Imperial China, and Confucius before her, were observant and appreciative of a kind of indeterminacy and immediacy coloring human legal affairs, a very un-judicial mixing of the winds and the currents that is seated only in "human nature ("renxin") and heavenly providence ("tianming").." (Wong 18) Thus the system of law and its associated court and police processes in China arises in a country and a people "with no history and tradition of democracy, privacy and individualism." (Wong 20) There is instead "Qing," "Li" and "Fa" or QLF, dating from Imperial China and signifying a complex, spiritual, and markedly oriental way of understanding and approaching life which cannot be detailed here except to say that a very significant part of it is an emphasis on rites that reflect the "essence of human nature." (Wong 29) The knowledge and understanding of these presumably mystic rites and their connection with right conduct is cultivated in the individual all along by education and not by simply knowing the law. Law is present only to guarantee observance of the rites and only as a last resort if the education is not sufficiently reflected in behavior. (Wong 28) Thus, "The ultimate objective of law makers and judicial officials [in Imperial China] was to actualize QLF as a way of life, i.e., establishing a harmonious and peaceful world wherein the ideas and ideals [of] Confucius hold sway." (Wong 26-27) In such a world, and still obtaining in modern China to some degree, acts of lawbreaking are viewed as "social-structural" problems rather than individual trespasses. (Wong 31) This does not necessarily lead to the good. It would seem natural that attending to social structures at the expense of individuals could and does lead to the loss of individual rights which, even in a country dedicated to the common good, can be extremely painful and unfair to individuals and their families. The 1982 Constitution mirrors China as an authoritarian country and as such does not limit the government as much as it does the people. It is more ideological than constitutional, even though it establishes itself above all institutions. (Sokol et al 1) It is somewhat of an ad hoc document in that significant new principles like "the socialist market economy," are more added-on than integrated, so they are not as intrinsically or structurally part of it as they might be. This allows it to reflect the ideological views of successive leaders. The point here is that such a Constitution may be too reactive than it ought be if it is to be truly a foundation of a great countrys principles and its dedication to the people. It may lend itself more to the concrete/particularistic outlook in which an undefined heaven, earth, and "social-structural," are paramount, rather than real human beings and their actual human rights. A malleable constitution such as this might incorporate QLF in a way that was not foreseen and never intended in the Empire. Yet at the same time, it could be defended, regardless of the uses to which it is put, as a natural outcome of a past society that honestly believed in the group over the individual, perhaps in a more sincere way than in China today. It might represent a co-opting of the past by the present for its own ends. Notwithstanding the informality of the rule of law on the grass-roots level, and the permeability of the Constitution, it is also a fact that on its present road to modernization and reform, China has proclaimed progress towards becoming a country in which the rule of law is getting stronger; many new laws and regulations have been legislated into being, and at the same time the various administrative bodies are becoming more law-driven, judges are becoming more professional, and more emphasis is being put on judicial fairness. The future will tell if this movement is ultimately successful In the meantime, social and administrative processes still hold sway over adjudicative processes. Chen stresses the good aspects of this situation: The strong emphasis on a communal existence, with powerful neighborhood committees, produces throughout the country a social control net that is much different from that present in Western countries. Although the pendulum is swinging from popular justice toward a more formal justice system, reaction to deviant behavior is still largely shaped by local sentiment. The organization of neighborhoods is grounded in mass participation through a network of committees. These popular justice institutions, such as the mediation committee and public security committee, are both proactive and reactive in identifying potentially troublesome social situations, preventing crime, resolving conflicts and dealing with offensive behavior. (Chen 2) This works, in a way that never could in America and in other countries that stress individualism, because the Chinese people see themselves more as group-members than as individuals. There is continuing education on right conduct on the grass-roots levels, so that the committees, though formally established and certified by the central government, are able to shape local societies that can tend to their own. Both interpersonal conflicts and breaches of statutory law can thus be addressed without courts; there is extrajudicial mediation provided by the mediation committees, so that ripples in the social pond soon cease, restitutions are made, old values are sustained, and order is restored. Of course there are exceptions, and the committees and the police stay close to one another in order to facilitate quick response in case something gets out of hand. The system of household-registration throughout China complements the work of the committees, although it is formally administered by the police. Household-registration helps keep order by centralizing permissions for passports, marriages, access to schools and housing, while also directing and limiting population movements in order to slow down mass exoduses from the countryside to the cities. We must not get the idea from all the above that the rule of law in China is exercised only on the grass-roots level. There are hierarchies of formal legal administration. The following summary (Dasheng 2), although it shows that the preponderance of the rule of law in China is exercised on the local level, also shows a firmament of government institutions above. The principle of ruling the country in accordance with the law calls for the strengthening of legislation and formulation of a comprehensive and clear-cut system of laws. According to the stipulations by the Constitution and Law on Legislation of the Peoples Republic of China, the National Peoples Congress and its Standing Committee are entitled to enact statutes; the State Council exercises the power to adopt administrative rules and regulations; the peoples congresses of provinces and municipalities directly under the Central Government, and their standing committees, may adopt local regulations; the peoples congresses of national autonomous areas have the power to enact autonomy regulations and specific regulations; the ministries and commissions under the State Council, the peoples governments of provinces and municipalities directly under the Central Government also issue orders, directives and regulations. (Dasheng 2) The Police Because the social order is so well maintained by the local social institutions and the home registration system, the ratio of police to population is quite low in China. (Chen 5) In China, policing policy is to rely on the "mass line", a product of the early Chinese communists faith in the innate wisdom of the masses, which means that the people are mobilized as part of a board-based comprehensive system of social control. Therefore, the so-called mass-line organizations, such as the public security committees, are considered to be the main channel to the masses. It is the reliance upon and coordination with these committees that is described in current police parlance as "the mass-line in policing." (Chen 8) American police forces do not conduct themselves as partners with local populations or organizations nor as providers of education for the young and services to elderly and ill people. The Chinese police do. They work closely with the local committees in a joint effort to head off discord and crime before it happens. Obviously that is critically viewed by some Americans, who may consider it a form of social repression on behalf of a conformity imposed ultimately by the top. They have a point. The ubiquitous activity of the police on the local level has the consequence that "...police at the regional levels continue to dominate the criminal justice system." (Comparative Criminal Law and Enforcement: China 1) The Chief of Police in a given area is not only head of Household Registration and partners with The Mediation Committee and the Public Security Committee, he is also a member of the standing Committee of the local Communist Party Committee and deputy mayor/governor in the regional government. (CCL 1) "He is the law of the place." (CCL 1) When a matter is too serious for dispensation by the local committees in cooperation with the police, the police handle it on their own. In this case, they are much more autonomous, and have much greater power, than their American counterparts. American laws of evidence, of detainment, and of arrest, do not apply in China. The police are given a free hand in gathering facts. When they press a charge the matter goes straight to court with little challenge regarding applicability or appropriateness of the charge and little regard as to whether the defendant has been treated in a procedurally correct manner. (1) What subsequently ensues in court has to do only with the veracity of the charge; the simple question of whether the crime was indeed committed by the defendant. The evidence provided by the police is all that is at stake in court; whether or not it can stand up under scrutiny. One wonders whether the rules of evidence that keep trials in America balanced and fair, play a similar role in Chinese courts. Extraordinarily, the police can - and do - skip the courts. They accuse, determine guilt, and sentence, in many cases involving offenses to public order - on their own. Most minor offenses are disposed of in this fashion by the police, who have the power to incarcerate for one to three years. Penal Policy Until 1983, China practiced "the policy of combining punishment with leniency", (Qi 43) as stipulated in Section 1 of the 1979 Penal Code. This "was attached to the public policy "to deal with different people or things in different ways with regard to the handling of contradictions among the individuals and strata of the society..." " (Q1 43) In 1983 itself, however, the Chinese Legislature determined to " "to punish serious criminal offenses as drastically and as soon as possible within the limits determined by the law." " The pendulum is swinging back as China undergoes its modernization. The Chinese Criminal Code lacks specificity in many of its guidelines, specifying parameters that are too wide to be meaningful, so that a violent offense causing severe disability is punishable by no less than ten years on the one hand, and death on the other. Nor does the judge explain his sentence the way American jurists do in their written opinions, which provide reasons that can be understood and challenged. Since Chinese judges as a rule ignore sentencing precedents, there have been cruel disparities in the sentences that individuals must serve. (Timothy Webster, first draft, not to be cited). The problem is now being addressed by new sentencing guidelines that commit judges to carefully consider various mitigating and exacerbating factors, and specify sentences accordingly, and according to, fixed "sentencing units". (Webster) These are fixed increments of time that are added or subtracted to or from a sentence based on the additional factors. Chinese Rule of Law and Terrorism This is an area of Chinese law which has been slow to adapt to the unique new rules of an age of terrorism. The regulations that do exist are few and written too vaguely, making it difficult for different judicial organs to decide individually or collectively on suitable punishments for terrorism, and even on the definition of what is being charged and what laws have been broken. The inexplicit regulations (Bing-Zhi and Xiu-mei 5) lead to perplexing questions. Is it the court that identifies an organization as being a terrorist organization, or is it the Ministry of Public Security? Are ordinary court procedures and penal practices relevant to the special nature of terrorism? What is different if the terrorists are not from China? For example, where the crime is creating public disturbance, Chinese law does not as yet distinguish between disruptive actions by terrorists and those without terrorist intentions. The authors point out clearly that there is a difference in kind between the harm done by ordinary crime caused by "frenetic ideas and thought", and the more exceptional horror that chills an entire society that is wrought by terrorist acts. (Bing-Zhi and Xiu-mei 8) Bing-Zhi and Xiu-mei suggest that because China does not have a developed judicial framework capable of dealing with the complications and signature features of terrorism, depending too much on "ordinary criminal rules", it might be well-advised to adhere to what is called for by the United Nations and the various international conventions on terrorism. (7) Works Cited Wong, Kam C. "Chinese Jurisprudence and Hong Kong Law." No site title, sponsor, or date of publication. Read More