Ugly reality puts paid to talk of rule of law

PUBLISHED : Saturday, 02 February, 2008, 12:00am
UPDATED : Saturday, 02 February, 2008, 12:00am

Miscarriages of justice mock official rhetoric

Mainland leaders have trumpeted the rule of law as a top priority for the government and the cornerstone of a harmonious society, yet three ongoing cases reveal that the concept is far from realised.

A reporter arrested for casting a county party secretary in a negative light, a man sentenced to life imprisonment for exploiting an automatic teller machine malfunction to withdraw 175,000 yuan, and a passer-by beaten to death by urban administrative officers after capturing their violent acts on camera - three incidents in the past weeks that expose a deeply flawed legal system.

A petrol station owner in Liaoning's Xifeng county felt unhappy about the government's compensation package for the reclamation of her station to build the country's biggest local goods-trading centre. She circulated mobile phone text messages bad-mouthing the county party secretary, and was thrown in jail for defamation.

But she was not alone in facing the charge. Three policemen from Xifeng travelled to Beijing to arrest journalist Zhu Wenna last month after her expose of the incident was published in the January issue of the Beijing-based Legal Man magazine. They claimed Zhu had also committed defamation.

'Supervisory news reporting resulting in a defamation charge, attempted arrest of a news reporter - these not only amount to a great tragedy for news media in general, but also an insult to a modern society's rule of law,' magazine editor Wang Fengbin said after the attempted arrest. Zhu narrowly escaped the police thanks to a warning from her boss.

'Treatment of the gas station owner shows that there is no judicial independence,' said law professor He Weifang of the Peking University.

The defamation charge requires an official complaint from the defamed, which the party secretary has denied making.

'It's not that there's a fragile concept of the rule of law here, there is simply no such concept whatsoever,' Professor He said.

Administrative law professor Wang Xixin , also from Peking University, said the problem laid with a lack of checks and balances.

'The police abuse their power, the party secretary abuses his power. When the master is unhappy, they do things quickly to please him, totally disregarding the law,' he said.

After two days of fierce public discussions, Xifeng police went to Beijing again to withdraw the charge against Zhu and attempt an apology - but that was not the end of the saga.

Last weekend Wang Fengbin submitted his resignation to the state-controlled Legal Daily, which owns the magazine and had made a more muted reaction to the incident.

A reporter at the magazine said he was shocked by the resignation and found it hard not to link it to Zhu's run-in with the police. Zhu told media she reserved the right to sue concerned departments for abuse of power. As for the party secretary, he has just been re-elected as a delegate to the Liaoning People's Congress.

Meanwhile, in Guangzhou, a young migrant worker from Shanxi will likely spend the Lunar New Year in jail as the Guangzhou Intermediate Court has refused to grant him bail pending a retrial.

Xu Ting was sentenced to life imprisonment in December for withdrawing 175,000 yuan from an ATM after discovering that the machine deducted only one yuan from his account for every 1,000 yuan he took out.

The Guangzhou court said that under the country's criminal law only two sentencing options were available for serious theft from financial institutions - a life sentence or the death penalty. Any amount above 30,000 yuan, according to a standard set down 10 years ago, was considered serious.

At a time when Shanghai's former head of social security, responsible for the billion-yuan pension funds scandal, was sentenced to only 18 years, and when officials implicated in Shanxi's brick kiln slavery incident received at most three years' imprisonment, netizens, media outlets and lawyers pounced on Xu's disproportional prison term.

Professor Wang said this stark comparison and the people's strong desire for fairness were the major reasons behind the public uproar. 'They want to know why the legal system is not able to impose appropriate punishment for different levels of crime.'

While most legal experts agree the law is dated, they considered this ' decision a reflection of the need for improvement in judicial standards and legal reasoning.

'There has been little discussion on legal reasoning in the past, only strict application of the law - which fails to address the complexity of legal rulings,' Professor He said.

The Guangdong Higher People's Court ordered a retrial last month, but a bail application to the intermediate court was refused. No particular reasons were given, Xu's lawyer said.

But at least Xu has a second chance.

Wei Wenhua , a model boss and party member, was beaten to death in January after he took out his mobile phone to film a confrontation between urban administrative officers and residents in Tianmen who objected to the use of their neighbourhood as a rubbish dump.

Urban administrative officers are an anomalous creation wielding the power of police but with no legal sanction. They keep the roads clean and street hawkers licensed, but the confrontational nature of their activities often results in violence.

When an urban administrative officer was stabbed to death in 2006 after confiscating the tricycle, and livelihood, of a hawker, equal sympathy poured in for the hawker and the dead officer. The Tianmen beating aroused further public anger at the officers, even raising debate on whether they should be disbanded altogether.

Professor Wang said the more fundamental question was: 'To whom does the city belong?' The government's duty was to enhance people's rights, not to take them away, and violent enforcement should be replaced by positive inducing measures, he said.

Professor He said: 'The exercise of power that infringes on property and personal rights must be sanctioned by law. Any violence outside the law will only aggravate social conflicts.'

The head of Tianmen's urban administrative officers was dismissed after the incident, and four main culprits in the beating detained, but no criminal charges have been brought.

In all three cases the authorities responded to the people rather quickly, even reversing their initial decision with Zhu and Xu. Some worry that this will erode judicial independence and bring on an era of 'trial by public opinion'.

Others think that public opinion is needed exactly when judges are still torn between pressure from the government and superior courts and the temptation of money.

'Amongst all the influential forces in China right now, public opinion is probably the friendliest to justice,' the Southern Metropolis News said in an editorial last week. 'It may appear interfering, but it in essence helps the courts and judges to develop independence.'