According to the media, the Ministry of Public Security issued the “Regulations on Public Security Organs’ Maintenance of Civilian Police Law Enforcement Authority” (hereinafter referred to as the “Regulations”).It includes such content that “the police perform their duties in accordance with the statutory conditions and procedures, exercise their powers, and cause damage to the legitimate rights and interests of citizens, legal persons or other organizations, the individual police officers shall not bear legal liabilities, and the public security organs to which they belong shall be given damages according to relevant state regulations. This content expands the power of the public security organs and their personnel, and reduces and invades the rights of citizens. According to Article 82 of China’s “Legislative Law”, “without basis on the law or the administrative regulations, decisions, and orders of the State Council, departmental rules may not set norms that derogate the rights from citizens, legal persons, and other organizations or increase their obligations, and may not increase the power of the department or the reduction of the statutory duties of the department”, the Ministry of Public Security is clearly a self-authorization of abusing legislative power.
It has been argued that the “performance of duties and exercise of powers in accordance with statutory conditions and procedures” as described here can be interpreted as “performance in accordance with the law.” So, what is the meaning of “law” here? According to common sense, the law is first of all the law of heaven or the law of nature. A country has its reason and legitimacy only because it protects the rights of citizens. This law of heaven is basically embodied in the written Constitution. The core part is the determination of the constitutional rights of citizens, including personal freedom (Article 37), personal dignity (Article 38), expression Freedom (art. 35), freedom of belief (art. 36), the right to inviolability of private property (article 13), the right to inviolability of dwellings (art. 39), freedom of communication and Secrets (art. 40), enjoy fair justice and basic human rights (article 33), criticize the rights of the government and its staff (art. 41), legal rights of the non-public economy (art. 11) ,and many more. The reason why the public security department was established was to protect the constitutional rights of these citizens. The “law” it relied on was first and foremost the constitution. The “Police Law” regards “supporting the Constitution of the People’s Republic of China” as a primary condition for a policeman. Therefore, the “job” of “executing a job according to law” is a duty to protect citizens’ constitutional rights from infringement.
Since “performing duties according to law” is to protect citizens’ constitutional rights, how policemen can “damage to the legitimate rights and interests of citizens, legal persons or other organizations” as the Ministry of Public Security says? This is obviously a constitutional paradox. Being able to “damage the legitimate rights and interests of citizens, legal persons or other organizations” must be a violation of the Constitution and related laws, rather than “performing duties according to law.” “Performing duties according to law” can only make citizens’ constitutional rights safer. Because these “legitimate rights” are protected by the Constitution and laws. Article 21 of the “Police Law” stipulates that “the people’s police shall immediately rescue the citizens if their personal and property safety is violated or in other dangerous situations.” In other words, when policemen see the act of “damaging the legitimate rights and interests of citizens, legal persons or other organizations”, they should be afraid of that they cannot stop it in time, should they also “perform their duties according to law” and “damage the legitimate rights and interests of citizens, legal persons or other organizations”? “If you string together the substantive meaning of the new regulations of the Ministry of Public Security, is it not that when policemen “damage to the legitimate rights and interests of citizens, legal persons or other organizations”, “they personally not responsible for the law”?
According to this reasoning, the “law” mentioned by the Ministry of Public Security in this “Regulations” is not a constitution or a law that conforms to the Constitution, but is otherwise referred to. In reality, we often see police officers calling “law enforcement”, but doing things that violate the Constitution and the Police Law. Once the parties want to protect their civil rights, they say “obstructing official duties”, which has become a routine. There are cases such as, the police breaking through the door in the middle of the night, restricting without reason on the personal freedom of citizens, and damaging to the property rights of citizens; the tens of thousands of mass conflicts caused by a large number of demolitions each year happened mostly under involvement of the police. None of the civil rights stipulated in the aforementioned Constitution is not damaged. Most of these unconstitutional violations have not been punished and corrected, and they also regard these acts as normal. In fact, as a group, the Chinese police have long neglected constitutional education. It is difficult for policemen to consciously implement the vocation of protecting the constitutional rights of citizens, and they more often regard the orders of superiors as “laws.” For example, when a female police officer in Chongqing recalled the days when she was in labor camp innocently, the police of the task group also knew that it was a wrong case, but they said that “the leaders demand that this be done, so what we can only do is doing the wrong case.” It is dangerous to tell the police that they can damage the rights and interests of citizens when they are unable to discern what the “law” they are relying on is, or they know that the leadership order is wrong but they must be enforced.
In the “Regulations” of the Ministry of Public Security, the reason for proposing its new regulations is that “in the past 40 years of reform and opening up, more than 13,000 public security policemen have died for public.” If they are sacrificed to protect the constitutional rights of citizens, we should mourn for them, but this does not mean that we should conclude that if the rights and interests of citizens are damaged, the “personal police officers do not bear legal responsibility” conclusions. Because this is only a unilateral statistic. In the past few years, how many citizens have lost their lives because of the police? The major vicious cases disclosed by the media include the case of that several police officers plotted to kill people in Fuzhou, Fujian Province in 2001, and the case of the killing by 6 police officers in Zhoukou City, Henan Province in 2004. In 2009, the Mengzi County police murder case in Yunnan, the case of police shooting two people in Guanling County, Guizhou Province in 2010, the police shooting the three-person case in Taipu Temple in Inner Mongolia in 2010, the police shooting in Panjin City, Liaoning Province in 2012, Pingnan County, Guangxi in 2013, the police shot the pregnant women, the 2013 Anshun police murder case, the 2015 Inner Mongolia Public Security Director murder case, the 2017 Xinhua County police shooting and killing case, and so on. The most shocking thing is the Lei Yang case. A person passing by the foot washing shop was unexpectedly died, and no police officer was legally responsible for it.
Some of these police murders are in the name of “performing duties according to law.” For example, the Lei Yang case was due to “catching the prostitution”, and the Panjin police murder case was for demolitions, and it was the “law” of leadership. There is also a wider range of police violations of citizens’ constitutional rights. It is carried out under the name of the so-called “legal”. For example, in the period of Bo Xilai’s administration, Chongqing was arrested in the name of “black society”. As many as 4,000 people. Chongqing police abused torture in illegally established “black bases”, including “tiger benches”, “tables”, “duck floating”, “Su Qin back sword”, etc., as well as mental torture, such as the so-called “politics returns to zero” , “economy returns to zero” and “emotion returns to zero”. Many people were sentenced to death without legal due process and 13 people were executed. When some local governments and their officials forced the peasant land, the police were often used to suppress land-losing peasants, causing a large number of casualties, such as the Panjin land acquisition police murdered one person. According to media reports, we have done an incomplete statistics. From 2003 to August 2014, there were 182 demolitions of malignant incidents, resulting in 484 casualties on both sides of the demolitions, 162 deaths and 322 injuries. More vicious incidents have not been reported.
Some people will say that the example I gave is only an individual phenomenon. Bo Xilai is just an accidental situation and cannot represent the mainstream and the overall situation, actually not. All people are mortal. In the absence of institutional constraints, good people will also become bad. What’s more, the facts show that Bo Xilai is not a only bad leader. Zhou Yongkang is another example. He was the main leader of the armed police. From 2012 to 2016, 23 public security system officials were dismissed, including 5 deputy ministerial and above officials. Someone listed a “list of chilling”, ranking 100 senior officials of Public Security System starting from Zhou Yongkang. Despite this, the Central Commission for Discipline Inspection still believes that the Ministry of Public Security’s anti-corruption efforts are insufficient. The key is not whether the leaders of these public security systems are corrupt, but as a mortal, as long as there is no strong restraint on the system, whether they will consciously be loyal to the constitutional spirit and take the protecting constitutional rights of citizens as their top priority. On the other hand, if our police group only regards the superior order as a “law”, it will inevitably lead to violations of the Constitution and harm to the legitimate rights and interests of citizens. And when they follow the orders of the superiors to “execute their duties according to law” and “do not bear legal responsibility”, can it not cause more harm to civil rights?
The new regulations of the Ministry of Public Security also propose that, in the case that the police individual does not bear the legal responsibility of “damaging the legitimate rights and interests of citizens, legal persons or other organizations”, “the public security organs under their jurisdiction shall compensate the damage caused according to relevant state regulations” .This is even more an embarrassing request. Where does “compensation” come from? Is it not the state finance? Where does the national finance come from? Is it not the money of the people? The logic becomes like this, for the damage to the legitimate rights and interests of citizens, the harming person does not have to bear legal responsibility and compensation, but the citizens must compensate themselves. In a society, if the victims themselves compensate their own losses, how can they stop the perpetrators? Can the victims survive if the perpetrators are encouraged? The contracting three rules issued by the first Emperor of Han Dynasty, “Killer should be die, hurter and theft should be punished according to criminal “The reason why this three rules can stabilize the hearts of people in troubled times is to say the most simple rules: the damager bears the blame. This is the most basic civilized rule in ancient and modern China and foreign countries. The failure of the planned economy tells us how low the efficiency can be when individuals do not bear the consequences of their actions; when the individual does not bear the consequences of harming the legitimate rights and interests of others, the social damage will be unimaginable. What’s more, the police are not ordinary people. They have violent tools in their hands. Once they are allowed not to bear the consequences of damage, policemen will not be controlled by the public security department; the public security department will also not be controlled by the society.
Finally, we must see that this new regulation of the Ministry of Public Security seems to protect the interests of the police. In fact, it is not the case, but the police are placed in a more dangerous situation. If the police do not protect the constitutional rights of the citizens, but execute the order of the superior leadership to deviate from the constitutional spirit, and do not need to bear legal responsibility, it will inevitably aggravate the tension and opposition between the police and the people. When the consequences are caused, the executer is either a scapegoat for the leader or protected by the leader but revenged privately. The facts also tell us that those police officers who execute wrong orders are not good at the end. For example, Chongqing’s “fighting black heroes” in the Bo Xilai period, Wang Lijun did not have to say, Zhou Hao, who was awarded the “Chongqing May 1st Labor Medal”, committed suicide in 2014. “First-class hero”, Tang Jianhua was arrested and imprisoned, and “first-class hero” Guo Weiguo was awarded 11 years of his sentence, Wang Zhi was sentenced to 5 years in prison, Zheng Xiaolin, Yan Hongbo, but Bo was convicted of conviction for extorting a confession by torture. Some people will say, isn’t it because Bo Xilai’s downfall? But isn’t Bo’s downfall just because he issued a sinful killing order? Moreover, if the constitutional rights of citizens cannot be protected, the police’s own constitutional rights will not be available first. Such as the prelude to Chongqing’s fighting black society, is the cleaning of the police force. More than 900 police officers have suffered from it.
Power is short, and Dao is eternal. In fact, for any police or official, the wrong order to refuse the superior leadership’s violation of the constitutional rights of citizens is the safest option for himself. Many criminal police officers always excused themselves by “executing superior orders.” They expect that superior powers will cover them with impunity, but the result is still the punishment that cannot escape the law. It should be understood that their superiors will eventually lose power because they execute the wrong order themselves. Conversely, refusing to execute the wrong command of the superior is a “care” for the superior. In fact, the execution of the wrong command is a kind of sin, which is called “the mediocrity of sin” by Hannah Arendt. She said that this kind of sin is unforgivable because all people can “obey orders” as an excuse to get rid of their responsibilities, so a society is devastated without any personal responsibility. Most societies have rules in place to avoid this. Article 33 of China’s “Police Law” stipulates that “the people’s police have the right to refuse to execute orders that exceed the scope of the people’s police duties stipulated by laws and regulations, and at the same time report to the higher authorities.” I hope that our police brothers will the rights provisions in the Constitution and Article 33 of the Police Act serve as the golden rule and amulet.
Even if you really perform your duties in accordance with the Constitution and the law, you can’t do it casually and you can’t take legal responsibility. Law enforcement also has procedural and methodological issues. From time to time, we have seen cases of violent law enforcement. For example, on May 17, 2016, a college student in Lanzhou was beaten by the police for shooting police brutal law enforcement; on April 17, 2017, four police officers in Shenyang did not show their documents when they arrested suspects without identified the very person. The police beat the person, then found to have caught the wrong person. On September 1, 2017, the Shanghai police tried to stop a woman’s illegal parking and pushed the woman holding the child to the ground and pressed it. And injured the child; on May 27, 2018, Anhui Lu’an teachers demonstrated for salaries and were beaten by the police; and so on. In a nutshell, there is also a question of how to enforce the law. Correcting a traffic violation error, or arresting a suspect is for public safety, if cause unnecessary harm to citizens during the execution process, it violates the original intention of setting up the police. The so-called law enforcement, which does not follow due process and does not take appropriate measures, is still in violation of the constitutional spirit and has caused damage to civil rights. Therefore, this should not be “not legally responsible”.
Finally, what is caused by this “Regulations” of the Ministry of Public Security is actually a constitutional issue. If this “Regulations” can really be established, the Constitution should be amended. This “Regulations” only talks about the rights of the police, and does not mention the constitutional rights of citizens that the police should protect. When there is only one mention about the constitutional rights of citizens, it is assumed that if the damage is done, how the police cannot be held liable. It seems that the police group is a special group that is external to citizens and society. Among other provisions, the “Regulations” extend the scope of application to “being maliciously complained, hype”, and “mistaken accountability or unfair disposition” and so on. What is “malicious”, what is “goodwill”; what is “public opinion supervision”, what is “hype”, not the public security department itself can say the final, but to go through a legal due process to discern the facts. In the reality of our country, having power, the public security department has a practical advantage over other citizens regardless of the law. Therefore, this “Regulations” actually makes the balance slope more to the party that has the advantage. In view of this, the public security department as a department has a very different nature from other departments. The departmental regulations it formulates are not a regulation of the internal affairs of the management department, but have strong external effects. The “Regulations” with such content should not be formulated by the public security department.
If this “Regulations” is practiced, the violation of citizens’ constitutional rights will be several times and dozens of times more than the present. For the ruling party and the government, this is also extremely negative. Because although the policemen are at low position, their behavior and attitude represent the image of the government. Once the government tells the police that they may harm the “legitimate rights and interests” of the people and are not responsible, they will despise the government because of the palliative that even they themselves feel too broad and arrogant, and they may actively abuse the people and cause trouble. Erasmus once said, “Even the most powerful monarch can’t bear the price of anger or contempt for even the most humble enemy.” If the ruling party wants to use such a method to “maintain stability,” it may be counterproductive and further shake the political legitimacy of the ruling party. Therefore, the ruling party and our society still have to correct this wrong “Regulations” in time. Because it has serious content violations of the spirit of the Constitution, I suggest that the State Council can determine that the Provisions “exceed the authority” and “the lower law violate the provisions of the superior law” in accordance with Article 96 of the Legislative Law; And according to the Article 97 of the Legislative Law, the State Council has the power “to change or revoke inappropriate departmental regulations”, and revoke the Regulations. The Standing Committee of the National People’s Congress may also conduct a constitutional review and revoke the Regulations on the grounds of unconstitutionality.
Xunzi said, “God creates people not for kings; but God establishes kings for people.” This tells the source of the power of “king”: Following the Dao for people. Here, “Dao” is the way of heaven, “people” is the public, and “king” is the government. The reason why the policemen exist is because the people need them; if they put themselves in front of people, they need not to exist. This is the law of heaven. The law of heaven is not artificially changeable. If someone think he can change, it is the arrogance of power. The greatest effort of mankind is to bring the artificial law closer to the law of heaven. However, no matter what, human beings have to follow the law of heaven. When the law of man-made approaches the law of heaven, they follow the law of heaven; when the law of man-made departs from the law of heaven, they will be punished by the law of heaven, and eventually return to the law of heaven. The difference is that the former is actively followed, only a small cost; the latter is passively followed, and it has to pay a high price. How much is it depends on when it is corrected.
February 5, 2019 in Fivewoods Bookroom
March 11, 2019 published firstly in FT Chinese and China-review Weekly
Nature of Rights 