According to the media, the Ministry of Public Security issued the"Regulations on Public Security Organs' Maintenance of Civilian Police LawEnforcement Authority" (hereinafter referred to as the"Regulations").It includes such content that "the police performtheir duties in accordance with the statutory conditions and procedures,exercise their powers, and cause damage to the legitimate rights and interestsof citizens, legal persons or other organizations, the individual police officers shall not bearlegal liabilities, and the public security organs to which they belong shall begiven damages according to relevant state regulations. This content expands thepower of the public security organs and their personnel, and reduces andinvades the rights of citizens. According to Article 82 of China's"Legislative Law", "without basis on the law or theadministrative regulations, decisions, and orders of the State Council,departmental rules may not set norms that derogate the rights from citizens, legal persons, andother organizations or increase their obligations, and may not increase thepower of the department or the reduction of the statutory duties of thedepartment", the Ministry of Public Security is clearly aself-authorization of abusing legislative power.
It has been argued that the "performance of duties and exerciseof powers in accordance with statutory conditions and procedures" asdescribed here can be interpreted as "performance in accordance with thelaw." So, what is the meaning of "law" here? According to commonsense, the law is first of all the law of heaven or the law of nature. Acountry has its reason and legitimacy only because it protects the rights ofcitizens. 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 toinviolability of private property (article 13), the right to inviolability ofdwellings (art. 39), freedom of communication and Secrets (art. 40), enjoy fairjustice and basic human rights (article 33), criticize the rights of thegovernment and its staff (art. 41), legal rights of the non-public economy(art. 11) ,and many more. The reason why the public security department wasestablished 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 thePeople'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 protectcitizens' constitutional rights, how policemen can "damage to thelegitimate rights and interests of citizens, legal persons or otherorganizations" as the Ministry of Public Security says? This is obviouslya constitutional paradox. Being able to "damage the legitimate rights andinterests of citizens, legal persons or other organizations" must be aviolation of the Constitution and related laws, rather than "performingduties 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'spolice shall immediately rescue the citizens if their personal and propertysafety is violated or in other dangerous situations." In other words, whenpolicemen see the act of “damaging the legitimate rights and interests ofcitizens, legal persons or other organizations”, they should be afraid of thatthey cannot stop it in time, should they also “perform their duties accordingto law” and “damage the legitimate rights and interests of citizens, legalpersons or other organizations”? "If you string together the substantivemeaning of the new regulations of the Ministry of Public Security, is it notthat when policemen "damage to the legitimate rights and interests ofcitizens, legal persons or other organizations", "they personally notresponsible for the law"?
According to this reasoning, the "law" mentioned by theMinistry of Public Security in this "Regulations" is not aconstitution or a law that conforms to the Constitution, but is otherwisereferred to. In reality, we often see police officers calling "lawenforcement", but doing things that violate the Constitution and thePolice Law. Once the parties want to protect their civil rights, they say"obstructing official duties", which has become a routine. There arecases 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 tothe property rights of citizens; the tens of thousands of mass conflicts causedby a large number of demolitions each year happened mostly under involvement ofthe police. None of the civil rights stipulated in the aforementionedConstitution is not damaged. Most of these unconstitutional violations have notbeen punished and corrected, and they also regard these acts as normal. Infact, as a group, the Chinese police have long neglected constitutionaleducation. It is difficult for policemen to consciously implement the vocationof protecting the constitutional rights of citizens, and they more often regardthe orders of superiors as "laws." For example, when a female policeofficer 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 saidthat "the leaders demand that this be done, so what we can only do isdoing the wrong case." It is dangerous to tell the police that they candamage the rights and interests of citizens when they are unable to discernwhat the "law" they are relying on is, or they know that theleadership 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 yearsof reform and opening up, more than 13,000 public security policemen have diedfor public." If they are sacrificed to protect the constitutional rightsof citizens, we should mourn for them, but this does not mean that we shouldconclude 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 fewyears, how many citizens have lost their lives because of the police? The majorvicious cases disclosed by the media include the case of that several policeofficers plotted to kill people in Fuzhou, Fujian Province in 2001, and thecase of the killing by 6 police officers in Zhoukou City, Henan Province in2004. In 2009, the Mengzi County police murder case in Yunnan, the case ofpolice shooting two people in Guanling County, Guizhou Province in 2010, thepolice shooting the three-person case in Taipu Temple in Inner Mongolia in2010, the police shooting in Panjin City, Liaoning Province in 2012, PingnanCounty, Guangxi in 2013, the police shot the pregnant women, the 2013 Anshunpolice murder case, the 2015 Inner Mongolia Public Security Director murdercase, the 2017 Xinhua County police shooting and killing case, and so on. Themost shocking thing is the Lei Yang case. A person passing by the foot washingshop was unexpectedly died, and no police officer was legally responsible forit.
Some of these police murders are in the name of "performingduties according to law." For example, the Lei Yang case was due to“catching the prostitution”, and the Panjin police murder case was fordemolitions, and it was the “law” of leadership. There is also a wider range ofpolice violations of citizens’ constitutional rights. It is carried out underthe name of the so-called “legal”. For example, in the period of Bo Xilai’sadministration, Chongqing was arrested in the name of “black society”. As manyas 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 returnsto zero" , "economy returns to zero" and "emotion returnsto zero". Many people were sentenced to death without legal due processand 13 people were executed. When some local governments and their officialsforced the peasant land, the police were often used to suppress land-losing peasants,causing a large number of casualties, such as the Panjin land acquisitionpolice murdered one person. According to media reports, we have done anincomplete statistics. From 2003 to August 2014, there were 182 demolitions ofmalignant incidents, resulting in 484 casualties on both sides of thedemolitions, 162 deaths and 322 injuries. More vicious incidents have not beenreported.
Some people will say that the example I gave is only an individualphenomenon. Bo Xilai is just an accidental situation and cannot represent themainstream and the overall situation, actually not. All people are mortal. Inthe 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 Yongkangis another example. He was the main leader of the armed police. From 2012 to2016, 23 public security system officials were dismissed, including 5 deputyministerial and above officials. Someone listed a "list of chilling",ranking 100 senior officials of Public Security System starting from ZhouYongkang. Despite this, the Central Commission for Discipline Inspection stillbelieves that the Ministry of Public Security’s anti-corruption efforts areinsufficient. The key is not whether the leaders of these public securitysystems are corrupt, but as a mortal, as long as there is no strong restrainton the system, whether they will consciously be loyal to the constitutionalspirit 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 andharm to the legitimate rights and interests of citizens. And when they followthe orders of the superiors to "execute their duties according tolaw" and "do not bear legal responsibility", can it not causemore harm to civil rights?
The new regulations of the Ministry of Public Security also proposethat, in the case that the police individual does not bear the legalresponsibility of “damaging the legitimate rights and interests of citizens,legal persons or other organizations”, “the public security organs under theirjurisdiction shall compensate the damage caused according to relevant stateregulations” .This is even more an embarrassing request. Where does“compensation” come from? Is it not the state finance? Where does the nationalfinance come from? Is it not the money of the people? The logic becomes likethis, for the damage to the legitimate rights and interests of citizens, theharming person does not have to bear legal responsibility and compensation, butthe citizens must compensate themselves. In a society, if the victimsthemselves compensate their own losses, how can they stop the perpetrators? Canthe victims survive if the perpetrators are encouraged? The contracting threerules issued by the first Emperor of Han Dynasty, “Killer should be die, hurter and theftshould be punished according to criminal "The reason why this three rulescan stabilize the hearts of people in troubled times is to say the most simplerules: the damager bears the blame. This is the most basic civilized rule inancient and modern China and foreign countries. The failure of the plannedeconomy tells us how low the efficiency can be when individuals do not bear theconsequences of their actions; when the individual does not bear theconsequences of harming the legitimate rights and interests of others, thesocial damage will be unimaginable. What's more, the police are not ordinarypeople. They have violent tools in their hands. Once they are allowed not tobear the consequences of damage, policemen will not be controlled by the publicsecurity department; the public security department will also not be controlledby the society.
Finally, we must see that this new regulation of the Ministry ofPublic Security seems to protect the interests of the police. In fact, it isnot the case, but the police are placed in a more dangerous situation. If thepolice do not protect the constitutional rights of the citizens, but executethe order of the superior leadership to deviate from the constitutional spirit,and do not need to bear legal responsibility, it will inevitably aggravate thetension and opposition between the police and the people. When the consequencesare caused, the executer is either a scapegoat for the leader or protected bythe leader but revenged privately. The facts also tell us that those policeofficers who execute wrong orders are not good at the end. For example,Chongqing's "fighting black heroes" in the Bo Xilai period, WangLijun did not have to say, Zhou Hao, who was awarded the "Chongqing May1st Labor Medal", committed suicide in 2014. "First-class hero",Tang Jianhua was arrested and imprisoned, and "first-class hero" GuoWeiguo was awarded 11 years of his sentence, Wang Zhi was sentenced to 5 yearsin prison, Zheng Xiaolin, Yan Hongbo, but Bo was convicted of conviction forextorting a confession by torture. Some people will say, isn’t it because BoXilai’s downfall? But isn’t Bo's downfall just because he issued a sinfulkilling order? Moreover, if the constitutional rights of citizens cannot beprotected, the police’s own constitutional rights will not be available first.Such as the prelude to Chongqing’s fighting black society, is the cleaning ofthe police force. More than 900 police officers have suffered from it.
Power is short, and Dao is eternal. In fact, for any police orofficial, the wrong order to refuse the superior leadership’s violation of theconstitutional rights of citizens is the safest option for himself. Manycriminal police officers always excused themselves by "executing superiororders." They expect that superior powers will cover them with impunity,but the result is still the punishment that cannot escape the law. It should beunderstood that their superiors will eventually lose power because they executethe wrong order themselves. Conversely, refusing to execute the wrong commandof the superior is a "care" for the superior. In fact, the executionof the wrong command is a kind of sin, which is called "the mediocrity ofsin" by Hannah Arendt. She said that this kind of sin is unforgivablebecause all people can "obey orders" as an excuse to get rid of theirresponsibilities, so a society is devastated without any personalresponsibility. Most societies have rules in place to avoid this. Article 33 ofChina's "Police Law" stipulates that "the people's police havethe right to refuse to execute orders that exceed the scope of the people'spolice duties stipulated by laws and regulations, and at the same time reportto the higher authorities." I hope that our police brothers will therights provisions in the Constitution and Article 33 of the Police Act serve asthe golden rule and amulet.
Even if you really perform your duties in accordance with theConstitution and the law, you can't do it casually and you can't take legalresponsibility. 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 forshooting police brutal law enforcement; on April 17, 2017, four police officersin Shenyang did not show their documents when they arrested suspects withoutidentified the very person. The police beat the person, then found to havecaught the wrong person. On September 1, 2017, the Shanghai police tried tostop a woman’s illegal parking and pushed the woman holding the child to theground and pressed it. And injured the child; on May 27, 2018, Anhui Lu’anteachers demonstrated for salaries and were beaten by the police; and so on. Ina nutshell, there is also a question of how to enforce the law. Correcting atraffic violation error, or arresting a suspect is for public safety, if causeunnecessary harm to citizens during the execution process, it violates theoriginal intention of setting up the police. The so-called law enforcement,which does not follow due process and does not take appropriate measures, isstill in violation of the constitutional spirit and has caused damage to civilrights. Therefore, this should not be “not legally responsible”.
Finally, what is caused by this "Regulations" of theMinistry of Public Security is actually a constitutional issue. If this"Regulations" can really be established, the Constitution should beamended. This "Regulations" only talks about the rights of thepolice, and does not mention the constitutional rights of citizens that thepolice should protect. When there is only one mention about the constitutionalrights of citizens, it is assumed that if the damage is done, how the policecannot be held liable. It seems that the police group is a special group thatis external to citizens and society. Among other provisions, the"Regulations" extend the scope of application to "beingmaliciously complained, hype", and "mistaken accountability or unfairdisposition" and so on. What is "malicious", what is "goodwill";what is "public opinion supervision", what is "hype", notthe public security department itself can say the final, but to go through alegal due process to discern the facts. In the reality of our country, havingpower, the public security department has a practical advantage over othercitizens regardless of the law. Therefore, this "Regulations"actually makes the balance slope more to the party that has the advantage. Inview of this, the public security department as a department has a verydifferent nature from other departments. The departmental regulations itformulates are not a regulation of the internal affairs of the managementdepartment, but have strong external effects. The "Regulations" withsuch content should not be formulated by the public security department.
If this "Regulations" is practiced, the violation ofcitizens' constitutional rights will be several times and dozens of times morethan the present. For the ruling party and the government, this is alsoextremely negative. Because although the policemen are at low position, theirbehavior and attitude represent the image of the government. Once thegovernment tells the police that they may harm the "legitimate rights andinterests" of the people and are not responsible, they will despise thegovernment because of the palliative that even they themselves feel too broadand arrogant, and they may actively abuse the people and cause trouble. Erasmusonce said, "Even the most powerful monarch can't bear the price of angeror contempt for even the most humble enemy." If the ruling party wants touse such a method to "maintain stability," it may becounterproductive and further shake the political legitimacy of the rulingparty. Therefore, the ruling party and our society still have to correct thiswrong "Regulations" in time. Because it has serious contentviolations of the spirit of the Constitution, I suggest that the State Councilcan determine that the Provisions "exceed the authority" and"the lower law violate the provisions of the superior law" in accordancewith Article 96 of the Legislative Law; And according to the Article 97 of theLegislative Law, the State Council has the power "to change or revokeinappropriate departmental regulations", and revoke the Regulations. TheStanding Committee of the National People's Congress may also conduct aconstitutional review and revoke the Regulations on the grounds ofunconstitutionality.
Xunzi said, "God creates people not for kings; but Godestablishes kings for people." This tells the source of the power of"king": Following the Dao for people. Here, "Dao" is theway of heaven, "people" is the public, and "king" is thegovernment. 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 thelaw of heaven. The law of heaven is not artificially changeable. If someonethink he can change, it is the arrogance of power. The greatest effort ofmankind is to bring the artificial law closer to the law of heaven. However, nomatter what, human beings have to follow the law of heaven. When the law ofman-made approaches the law of heaven, they follow the law of heaven; when thelaw of man-made departs from the law of heaven, they will be punished by thelaw of heaven, and eventually return to the law of heaven. The difference isthat the former is actively followed, only a small cost; the latter ispassively followed, and it has to pay a high price. How much is it depends onwhen it is corrected.
February 5, 2019 in FivewoodsBookroom
March 11, 2019 published firstly inFT Chinese and China-review Weekly