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Reflections on a Wandering Life.....

Sunday, April 05, 2009

Legal Reform in China 

Very interesting editorial in the weekend paper regarding the treatment of prisoners. The article refers to the unnatural deaths of four individuals in custody. It's good to see this kind of thing being discussed, but the problem with the article is that it mentions that the prisoners were denied the right to see their lawyers, as if there is something unusual about this in China. In fact, denying prisoners the right to representation by counsel of their choice is quite a common practice in China, as in the case of the blind lawyer in Shandong Province. His lawyers were never allowed in the courtroom. More importantly, even when the lawyer is given full access to his client, his role is more or less perfunctory, because the judge is the finder of fact as well as the finder of law, even in criminal cases, as discussed in a earlier podcast.

The four cases mentioned in the article got a lot of attention, because they died when they did not have a death sentence. The thing about them being beaten is also a bit disingenuous. It is not that unusual for prisoners in custody to be beaten. It happens far too often. Of course, it doesn't only happen in China. The Rodney King beating in the United States got a lot of attention, and although some may counter by saying that the cops who did it were dealt with severely, it must be pointed out that they were only dealt with severely because they were caught on camera by a bystander.

What is the proper safeguard against this type of injustice? It is the rule of law. It is common today to hear various individuals in China pay lip service to the rule of law. I have heard it several times on Dialogue. And, of course, Americans always pride themselves in being governed by the rule of law. But for different reasons, neither China nor America can actually put into practice this noble principle they both claim to espouse. I will start with China.

China is fond of saying that the National People's Congress is the "highest body of state power." As I mentioned in a previous post, some in the West respond to this statement cynically. The Wall Street Journal refers to the NPC as China's "rubber stamp" congress. But the National People's Congress is, in fact, the highest body of state authority. Laws in China emanate from this body, and only after extensive debate, as in other legislative systems. The "catch," in China, is that, as Jiang Jinsong says in his book, The National People's Congress of China, "Under the Westminster model the party in power functions within the state. The Communist Party directs all state institutions from above. It is over the state." Since law emanates from the state, if the party is above the state, the party is above the law. In a system governed by the rule of law, nobody is above the law. Nobody.

This problem in China is manifested in two ways. First, there are several instances in China where judicial decisions are dictated by the party. In local communities, local party bosses will sometimes order the judicial committee to decide a given case in a certain way. It is hard to prove specific cases, but the practice is commonly known. In the case I mentioned earlier, the appeal decision was almost certainly dictated from Beijing. Over and over again, in China, we find that judicial decisions are not based on law. They are based on what the party considers expedient.

Secondly, there are certain cases which are rendered "extra judiciary." If the government determines that a given case has political implications, they can make decisions that are beyond the reach of the judicial system, much as prisoners were sequestered at Guantanamo by the Americans in an attempt to keep them beyond the reach of the American judicial system. The classic case in recent history concerns the two elderly ladies who were sentenced to one year of "re-education through labor" for applying to protest during the 2008 Olympics at officially designated sites. I don't want to wander off into a discussion of the "re-education through labor" system in China, except to state unequivocally that it is fundamentally hypocritical to defend such a system and still talk about "rule of law." You simply cannot have both.

So while it is popular in China today to hear discussions about the rule of law, it cannot be implemented without a fundamental change in the system. But if rule of law is not actually possible under the current Chinese system, neither is it possible under the present American legal system. The reasons are different, but just as profound. In America, the problem is what I refer to as the "tyranny of the judiciary." The Supreme Court has the power to nullify laws they don't like, on the basis that those laws are "unconstitutional." This is a power that is pretty much taken for granted in America today, but it is important to point out that this power was not given to the Court by the Constitution. The Constitution doesn't say a word about this. And there has never been any legislative action giving judges this power (as if there ever could be). In fact, the judges of the Supreme Court gave themselves this power in Marbury v. Madison. This case is both significant and ironic. Significant, because it established the power of the Supreme Court to decide the constitutionality of law. Ironic, because the Supreme Court's decision actually redounded to Jefferson's favor, but he disagreed strongly with the basis for their decision. This is what Jefferson said about the subject of judicial review:"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."Jefferson's distrust of the judiciary (especially in his later writings) is well known. But in my opinion, Jefferson's worst fears have come to full fruition in the modern American body politic. In a previous post, I referred to the New Jersey case mandating the state legislature to pass a law allowing for same sex marriage on the basis that the current status quo could "no longer" be tolerated. The term "no longer" is significant, because it implies that the prohibition of same sex marriage was acceptable at one time, but is now to be found unacceptable for reasons the judges did not feel obligated to state even though, by their own admission, there was no inherent right to same sex marriage in existing New Jersey law.

Perhaps the most important example of this problem in American history is the Roe v. Wade decision of 1973. This decision was remarkable in that it arbitrarily defined the first trimester as a time when the fetus was not viable, and thus could be aborted. Regardless of what you believe about abortion, for the purposes of present discussion, the important issue is that the Supreme Court did not merely allow for abortion, they actually ruled that States could not prohibit it. Thus, the laws duly enacted by the several states were nullified by a few men on the basis of arbitrary definitions of life (or the viability thereof). This is extraordinary, and illustrates, better than any example I can think of, why the rule of law can never be more than an ideal in the American legal structure. Some would counter that the rule of law is preserved by the possibility of a constitutional amendment. But requiring a state to obtain approval from a majority of the other states in order to enforce their own laws creates an unusual and prohibitive burden. Thus we see that, while both China and the United States tend to pay lip service to the rule of law, in fact, neither of them really believe in it.

So what is the solution? Again, I will start with China. Concerning the issue of re-education through labor, there is need for fundamental reform. It is only fair to point out that the two elderly ladies were not actually sent to a labor camp. I don't know if they are under house arrest, or just allowed to go home. But they were sentenced to a labor camp, and this sentence was changed only after intense international pressure. The feeling in China seems to be, "We don't need to worry about human rights, because the Americans will always remind us if we do something that is not appropriate." This is not good. China needs to grow up. It should not take international pressure to let China know that it's not appropriate to lock up little old ladies who have taken it upon themselves to petition for redress of legitimate grievances against corrupt party bosses, or whoever else is causing them trouble. Such people should be given all due assistance, not sent to a labor camp because they have embarrassed China.

Now concerning judicial independence, I am less worried. This issue is openly debated in China. The professor at Peking University who is raising this issue has not been arrested. He is quoted in government media. It's going to take some time, but I do believe that change is in the works. So I have a "wait and see" attitude on the issue of judicial independence.

America. I am much more pessimistic about America. The system of judicial review is entrenched. Quite often you will hear talk of a constitutional amendment for one issue or another. But there is little talk of overturning the judicial review system that makes such amendments necessary. John Roberts was seen by some as a friend of reform, and his nomination as a victory. I don't see it that way. In order to get nominated, he felt compelled to state that Row v. Wade was "settled law." This was a statement of support not only for the specific ruling, but for the whole process of Supreme Court review that has created the judicial tyranny from which Americans seem helpless to free themselves. Rule of law is a very American ideal. But it is destined to remain an ideal. It can never be implemented in a system where laws can be summarily overthrown by judicial fiat.

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