International Conference on "Genocide in the New Era": Rule of Law vs. Rule by Law in China

Ladies and Gentlemen:

First of all, I would like to thank everyone for taking the time to come and sharing your insight on the subject of genocide at this conference. Your participation has meaningfully contributed to the collective effort to eliminate injustice on the face of this earth. While many speakers have addressed issues on China here, I wish to share some of my observations, which I hope will help shed light on your legal proceedings in the future.

To understand the legal system of China better, we should first examine some fundamental issues involving the role of the Constitution in China as well as the relationship between the Communist Party and its subjects--the people. Who writes it? For whom is it written? And how, if at all, is it executed?

In Western civilization, there has been a Christian tradition or convention that before God all are equal. This doctrine, whether applied in great depth or not, has served as the bedrock for Western culture and legal thoughts; hence, "all men are created equal" became part of the U.S. Constitution. In China, the Confucian tradition, on the other hand, has advocated a harmonious, yet hierarchical social structure that orders society in such a manner that the ruler makes the laws and the subjects follow them unconditionally.

Such different cultural perspectives are still distinctive in today's legal systems both in the West and China, and are utilized to their fullest extent in the U.S. where the common law tradition holds, and in China where the Communist Party dictates. Now let us look closely how they are played out in the U.S. and China through comparison.

1. In the U.S. it is the people or the citizens who make the law and give the power to state and government. This is done through electing their representatives or lawmakers in the Congress, who then make laws that must reflect the opinions and interest of their constituents. Whereas in China, it is the Communist Party that makes the law and delegates the power to its subjects--the people. The citizens in China do not have any say whatsoever in the lawmaking process. They have never been given an opportunity to vote for their Congressional delegates though they are called the people's delegates, let alone provided the chance to vote for the executive branch.
2. The U.S. law is made by the people and for the people, rather than designed for any political group; whereas in China law is created by the Communist Party and for the Communist Party since the people are denied the right to participate in the lawmaking process. Lawmaking thus serves the purpose of maintaining control and power for the Communist Party dictatorship. According to a legal scholar in China, a new law will come into being every 18 days in China today, but such new legal creatures are limited to regulate economic activities, rather than adding any administrative laws that could regulate the conduct of government or that of officials. Further, like planned economy, new laws in China are created not based upon the need, but upon the quotas, as required by the entry to WTO. Still, since the legal and judicial systems are not independent in China, it remains a question whether the new and old laws will be implemented at all.
3. Another significant aspect of lawmaking in China is that despite a sharp increase in legal regulations by the Communist Party, they are meant to regulate and control of its people, instead of being created to guarantee the rights of the people. For example, the new Internet law is created to restrict people's access to information from abroad, instead of liberalizing the industry. We have also seen ample reports that senior officials are able to enjoy immunity from being prosecuted for all sorts of criminal act, whereas the rights of innocent citizens are often violated without protection.
4. In the U.S. we see a tendency that laws are often made to curb or restrict the power of the government, and the government cannot do something that its people have not given it the right to do it. The government is empowered or entitled to do something only if the people want the government to do it through providing it with the right to do it. And people can also take the right back from the government if they find the government has too much power or abuses its power.
5. Also, in the U.S. we see that laws are made to maximize the rights of the people who tend to have unlimited right. Unless there is a law that clearly states that you cannot do it, you can do just about everything. For the US government, however, the situation is reversed, because the government can only do things that the people have authorized them to do, with clearly defined power that is granted to it by the people. The lawmaking in the U.S. serves the interest of its people because they are the ones who influence the outcome of the lawmaking process. So we see in the US Constitution the statement of "We the people".
6. In China, the Constitution is like a house rule book. Whoever becomes the dictator, he or she will re-write it. In Mao's time, Mao Tze-tung Thoughts became the guiding principles of the Constitution. In Deng Xiaoping era, Deng's version of Communism was built into the Constitution. With Jiang Zemin in power today, his so-called "Three Represents" concept has now become part of the Constitution to reaffirm Communist dictatorship in this 21st century. So the Constitution is being amended not to give people more rights, but to record the legacy of each dictator in the Chinese Communist legal history.
7. Each time we visit the newly revised the Chinese Constitution, we find that the people have in fact just lost some more rights. Therefore, many Chinese people have cried out loud, "Stop revising the house rules or the Constitution; let us execute it for once."
8. However, executing Chinese Constitution can become illegal and dangerous, as noted by a visiting Chinese legal scholar in the U.S. Why? If one truly exercises a Constitutional right such as the freedom of press, the freedom of conscience, the freedom of expression, and the freedom of association, this person would end up in jail, if not dead. The cases of Falun Gong practitioners we have heard here are typical examples. They don't cheat, they don't steal, they don't commit any criminal wrongdoing; instead they have been trying to follow their ancient teachings of Truthfulness, Compassion, and Tolerance to be good people. But in today's China, it becomes wrong to be right, and it is right to be wrong. As a Western attorney marveled, lawsuits in China are more a guessing game, very unpredictable, as he has lost cases that he should have won in China, but won cases that he should have lost in the eye of law.
9. So this brings me to the final point of rule of law vs. rule by law. In a civil society, the Constitution is above the agenda of all political parties and serves as the ultimate source of power. But because the Communist Party's policy is above the Constitution and because the Constitution is a tool that serves the interest of a political party rather than the interest of the entire population, there is no rule of law in China. Rather, the Communist Party rules by issuing inconsistent decrees and policies. When such decrees and polices violate its own Constitution, the decrees and policies over-ride its Constitution. We have heard many cases during the conference that have exemplified this argument. This is why this same visiting Chinese legal scholar said, "It is much safer to violate the Constitution than to violate a Communist Party policy." In the U.S. it is the other way round. There are many people who disagree with certain polices of the government and they are entitled to do so without the fear of being tortured or sent to jail for their dissenting opinions. No one, including the President, would likely escape prosecution if they are found to have violated the Constitution.
10. In the end, I wish to point out that the International Advocates for Justice is a new, nonprofit NGO that aims at promoting rule of law and seeking justice for innocent victims through the courts of law. Human rights are a moral issue, and a matter of protecting human dignity. We hope that all participants will benefit from this conference and let us work together to help end injustice and the atrocity occurring to the Falun Gong practitioners in China.

Again, thank you very much for your participation in this conference, and I wish you and your family the very best in the year of 2004.