The petition system is one with inborn relations to the rule of men.
司法独立应该先行（一）
信访制度根源于人治
Peking University law professor He Weifang has made a name for himself as an activist calling for reforms of the judicial system in China. 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. Recently, he spoke with Beijing Review reporter Li Li about the petition system and legal reforms in China.
Beijing Review(Q): Against China’s social backdrop, what kind of role is the petition system playing to ease social tensions?
He Weifang(A): 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.
Q: How do you view the relationship between the petition system, China’s social and cultural background and the evolution of the legal system?
A: 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 England 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 prent 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.
Q: Do you believe there is a contradiction between the petition system and China’s goal to build a society ruled by law?
A: 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.