Chinese constitution's pride of place will mean little without independent judiciary

On December 4, local prosecutors interrogated and threatened to punish Meng Xianjun, a retired prosecutor from Huaibei city in Anhui province, for talking to the media about a wrongful conviction. Back in 2005, the then prosecutor had been forced to indict a person called Gao Shang based on the orders of a party official responsible for supervising the work of police officers, prosecutors and judges in Huaibei. This was although Meng and his fellow prosecutors were all convinced Gao had not committed a crime. For years, Meng kept petitioning provincial and national judicial organs, asking them to correct the wrongful conviction, for which he was partly liable. When they turned a deaf ear to his petition, he felt he had no option but to go to the media for support. Now, however, at long last, there is a ray of hope for Gao, as Anhui's higher court has decided to retry the case. The bitter irony of Meng's efforts is that local prosecutors threatened him with retaliation for exercising his constitutional right to petition on the very day China celebrated its first-ever Constitution Day. Just a day ahead of the celebrations, President Xi Jinping had called for more awareness of the constitution and a better understanding of the rule of law. In China, the right to petition is enshrined in the constitution. Article 41 says that every individual has the right to make complaints or charges against, or exposure of, state organs or functionaries for violations of the law. Moreover, the state organs concerned must respond to and deal with the complaints, charges or exposure; nobody is allowed to suppress them or retaliate against the individual making the complaint. Constitution Day was established on the basis of a proposal at the Communist Party's recent fourth plenum to choose "rule of law" as its central theme. For the first time in the party's history, the rule of law dominated a Central Committee meeting. The fourth plenum also proposed to establish a mechanism within the National People's Congress and its Standing Committee for constitutional interpretation and supervision. The "sleeping" constitution that promises a wide range of civil liberties may finally come to life. Although the current constitution has claimed paramount authority since its birth, the cruel reality is that its provisions have not been used as the legal basis for judicial decisions. The plenum will probably be remembered as a landmark in China's legal development for introducing numerous far-reaching legal reforms aimed at "locking power in a cage" and promoting judicial transparency and accountability. One significant contribution is the special emphasis on the role of the constitution in establishing the rule of law in China. At the same time, China will continue to adhere to a "socialist path in the rule of law with Chinese characteristics" that stresses both the authority of the constitution and the leadership of the party. To the disappointment of many liberal-minded reformers, the party has made it clear that China absolutely rejects the Western concept of judicial independence. In Western democracies, this protects the judiciary from infringements by the legislative and executive branches, and constitutes a bulwark against abuse of power. In China, however, Western-style judicial independence has no place within the current constitutional framework that opposes the concept of separation of powers. Given the party's general leadership over judicial organs, it remains highly questionable whether individual judges will be able to adjudicate cases independent of arbitrary interventions by party officials. Thus, Meng's case is a telling example of how party officials manipulate judicial decisions and impede, in flagrant defiance of the leadership's earnest appeal for rule of law, the correction of wrongful convictions. Chen Xingliang, a Peking University professor of criminal law who has published a book on the subject, labelled it an "outrageous case" and a product of "extralegal intervention". By any standards, such an intervention should have been avoided. This case is just one example of many wrongful convictions in recent years. In 2010, Henan farmer Zhao Zuohai was freed after having spent 10 years in jail on a murder charge - after the alleged victim turned up alive. But Nie Shubin, a young man from Hebei , wasn't so lucky. He was executed in 1995 after being convicted in a rape and murder case. In 2005, the real perpetrator confessed. If there is no punishment for those liable for causing the wrongful conviction and seeking to halt Meng in his efforts to overturn the conviction, then the party's pledge of the rule of law will be revealed as empty talk. And if violations of the constitutional right to petition are not stopped, Constitution Day will be meaningless. Zhou Zunyou, head of the China section at Germany's Max Planck Institute for Foreign and International Criminal Law, is working on a research project on counterterrorism legislation

Chinese constitution's pride of place will mean little without independent judiciary

.css-1c6uqr6{color:inherit;font-weight:inherit;font-size:inherit;font-family:inherit;line-height:inherit;overflow-wrap:break-word;}Zhou Zunyou says China's insistence on rule of law is often undermined by its own party officials

Zhou Zunyou says China's insistence on rule of law is often undermined by its own party officials