Under the Constitutional Perspective, Judicial Fairness

Author: Dong Maoyun
Publisher:
Publish Date: 2003-01-01
Features: The concept of justice is often vague to the Chinese. In feudal times, China had justice but no independent judicial power. Apart from specialized judicial organs in central power structures, local power structures typically lacked such organs. Government offices were places for hearing and resolving disputes, but old government offices were primarily administrative bodies. Judicial power was subordinate to administrative power. At times, such as during warlord rule, judicial and administrative power were even dependent on military power. Despite this, people still expected justice to be fair. Of course, this could not rely on oneself or on procedures (fearful that there was no concept of procedure at all), but rather on the "just and incorruptible" officials. Westerners had their goddess of justice, blindfolded, holding a sword in one hand and a scale in the other, with people filled with reverence toward her. The Chinese had their own Bao Qingtian, but unfortunately, he was human, not a god. The Chinese merely hoped for more Bao Qingtians, rather than relying on the favor of a justice god or a goddess of justice. The blindfolded procedural significance and the fairness of the scale were, in the eyes of the Chinese, seemingly redundant. In the Chinese imagination, Bao Qingtian was like an image on a stage—tight black face, glaring eyes, and holding a gleaming imperial sword high. People revered him more than they feared him. The officials in the government offices naturally took it upon themselves to uphold justice, and the plaque "A Clear Mirror is Suspended High" in the main hall seemed to proclaim the idea of judicial fairness. However, the scourge batons in the hands of the bailiffs and the stone lions with wide-open mouths at the entrance of the government offices did more to reinforce the old saying: "Government offices face south; if you have no money, even if you are right, don’t come in."
For the people of the New China, the term "justice" remained vague for a long time. Officially, the term "political and legal" was often preferred, naturally giving rise to the concept of "political and legal organs." The term "political and legal" implied the unification of politics and law, as well as the unification of administration and justice, and even carried a special meaning as the "instrument of state governance." In China, "political and legal organs" typically referred to national institutions such as public security, procuratorates, courts, judicial administration, and security. People often said, "Public security, procuratorates, and courts are one family," although there was no basis for this in the current constitution, it made sense from the perspective of the concept of "political and legal." The people of the New China often confused "political and legal" with "justice," and "political and legal organs" with "judicial organs." The theory of the "instrument of state governance" made people more concerned with whether the "instrument" was sharp and powerful, rather than whether its use was legal, reasonable, or just, because the latter was unquestionable. However, their pursuit of their own interests still made them expect social fairness. Since "political and legal" was the "instrument of state governance," people turned all conflicts and disputes to the fair handling by the Party and the government, ignoring the special function of justice and the fairness of justice.
Modern concepts like the constitution and constitutionalism arrived in China with Mr. Democracy and Mr. Science at the beginning of the last century and for a long time were only associated with literati and a few professional revolutionaries. Although there had been constitutions, they were more about changing national flags and cutting off queues, having nothing to do with constitutionalism. Many Chinese did not know what constitutionalism was, and they trusted the "savior" more than themselves. The revolutionary path advocated by Sun Yat-sen—military government,, and constitutionalism—was indeed born out of the of a Chinese society lacking a tradition of the rule of law. The New China promulgated a constitution, but the early constitutions were more political programs for the new regime than a foundation for implementing constitutionalism. In recent constitutional amendments, the principle of "governing the country according to law"—the rule of law—was established, and China finally took the path of constitutionalism. After the efforts of generations, the Chinese finally realized that the path of the rule of law and constitutionalism was the true path to liberation and self-reliance for the Chinese. It concerns whether China can uphold the dignity and interests of individuals, the prosperity and development of the nation, and whether China can be included among the civilized nations of the world. Constitutionalism is democratic politics based on the rule of law, with the core being limited government and the protection of human rights. Constitutionalism is the cornerstone of judicial fairness. A democratic politics without the rule of law is either short-lived or anarchic, and judicial fairness detached from constitutionalism is uncertain and lacks universal significance. Of course, severe judicial injustice will endanger constitutionalism itself. Just as people continually approach truth, they are continually approaching judicial fairness. Modern constitutionalist ideas and systems have given judicial fairness unprecedented support. Today, we suddenly find that Chinese judges have become more like judges, and Chinese courts have become more like courts. When judges remove their large-brimmed hats and rigid epaulet uniforms and put on robes that, though uncomfortable, highlight their identity, we see that judges no longer need to rely on the image of soldiers or police to enhance their authority. From the dignified image of judges, we seem to see the dignity and sanctity of the law. When courts move from government office buildings or old factories into independent court buildings, and when solemn court buildings increasingly become landmarks of cities, we seem to see judicial independence and authority. From countless vivid changes, we see more and more hope for the realization of judicial fairness.
What is judicial fairness? What is the relationship between constitutionalist ideas and judicial fairness? How to understand procedural fairness and substantive fairness—these seemingly resolved questions remain unsatisfactorily answered.