'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.