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The development of the rule of law in China and a comparison with the Indian judicial model
The recent execution in China of an EU national has brought the charge from Amnesty International that there are more executions there every year than the rest of the world combined, but the actual numbers put to death remain a state secret. It was followed by an inquiry into the Rio Tinto employees on industrial espionage charges and a secretive investigative process. Prof. Zia Akhtar comments on whether the application of constitutional liberalism in India imposes a more transparent and accountable system as compared to the Chinese interpretation of ‘rule of law’. |
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Introduction
In a civil society, the judicial branch is independent and acts as a bulwark against dictatorship making the redress of grievances possible. The arbitrary instruments of dispensing power exist where such a stage has not been arrived at because humanity’s aspirations have not been met. There are some countries where the imbalance in the separation of powers has been rectified by a revolution, such as in France, and in the UK by reference to the Magna Carta 1215 and the Settlement Act 1701 leading to a constitutional monarchy. Those oligarchies that still exist, such as the Chinese one party state maintain their power by an ideology that calls for obedience to the government that relies on an ancient concept of a moral authority. In the modern era it is a cause for friction between the occident and the orient and calls for an examination of the nature of that power, whether it provides a rule of law and a constitutional authority.
The western world seized the baton of intellectual progress in the post enlightenment period and the evolution of legal philosophy began to mirror that being witnessed in science and technology. In this phase the feudal eastern cultures became distinct from European civilisation. It was an attempt to rationalise society and the triumphalism that has accompanied the achievement of constitutional government has led to a comparison between the western and eastern ideologies.
The doctrine of the separation of powers that was formulated in the 18th century by Montesquieau" s legal theory was significant in limiting the powers of the executive for a modern constitution. It was followed by the rule of law concept of Dicey as a requirement of Parliamentary democracy. These have become the founding stones of democratic government in the west and been the tools that caused the downfall of the Iron Curtain in the aftermath has left the government in China as one of the few remaining countries who follow the Marxist doctrine. Since coming into existence the PRC has had four constitutions in 1954, 1975, 1978 and 1982. While the Chinese development of law is diametrically opposed to the liberal tradition there have been changes since the coming of Communist rule which suggest that the rule of law is in the grasp of China and, perhaps, it can attain it on its own terms.
This article poses the question as to how constitutional liberalism can be contrasted with the compliance of state power in China. It will arrive at the deductions based upon the recent case law dating from the Rio Tinto arrests, execution of a EU national and quashing of the separatist movement in the south west of the country. It will be set in the context of the definition by jurists of the principle of socialist legality. The paper will examine e historical fact of an omnipresent authority in China, and its development into the modern communist state’s developing logic of pushing its own weight in the modern world. There will be a comparison with India which has a constitution with principles of derived from a departing colonial authority and its claim to represent a democratic framework achieves a rule of law.
Rule of Law as a governing principle
The need arises to contextualise the removal of autocracy in the Western world with what is perceived to be the norm in the case of China. The legal validity of the European orders is based upon the balance of powers shared between the various organs of state, a necessary endowment of any constitution which Montesquieu presented in his work L ’ Spirit d’ Lois (The Spirit of the Laws, 1848). These checks and balances are the cornerstone of democracy because they protect against the abuse of rights. Montesquieu complimented the example in England, which in spite of its evolution toward a fusion of powers, had moderated the power of the monarch, and divided Parliament along class lines.
The development of the separation of powers doctrine constructed the founding blocks for a liberal constitution. It was set out by Professor A.V.Dicey in his book 'The law of the Constitution' published in 1885. He annunciated three principles as encapsulating a rule of law. They were the supremacy of law; equality before law; and predominance of a legal Spirit.
Dicey attached meanings to the concepts which were that firstly no 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. This implies a due process for the trial of offences before the judicial authority. The second meaning is that every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. The third meaning of the rule of law is that the general principles of the constitution are the result of juridical decisions determining rights of private persons in particular cases brought before the court. Dicey states that many constitutions guarantee their citizens certain rights such as right to personal liberty, freedom from arrest etc, but that such rights can be made available to the citizens only when they are properly enforceable by judges in the law courts. In England, the Courts are the guarantors of the individual rights and rule of law establishes an effective control over the executive and administrative power.
The Chinese adherence to a model that owes its authority to non western sources is according to Bo Li, a lawyer of Chinese extraction living in the US based on premises that are inherent in the oriental conception of law. He states in his essay What Is Rule of Law by reaffirming that constitutional liberalism is the founding stone of common law based systems that lead to integrating those principles into the political order. He compares the Western model with its application in South /East Asian countries by postulating the question what are the institutional and cultural questions of the rule of law?
His answer focuses on the meaning of the rule of law and its values by comparing the terms "rule of law" and the rule "by" law. He argues that law is an instrument of the government, and that the government is above the law. However, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order and under its rules the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion.
Li argues that the distinction between the procedural or formal justice in contrast to substantive justice is achieved when a homicide in the U S results in a person killing another person. The criminal justice system will have a substantive justice requirement that the killer be punished according to law. However, if the killer is illegally tortured by the police to confess to his crime and, as a result of the confession, the police find evidence proving guilt beyond reasonable doubt, such as the weapon, the body of the victim, etc., for the court to convict the killer (an instance of substantive justice), there is no procedural justice because the process of finding guilt has violated the basic rights of the killer who, before the conviction, is a citizen entitled to the full protection of the Bill of Rights.
In this scenario based on the well-established law of criminal procedure, an American judge will not allow the record of confession (obtained through torture) and anything found as a direct result of the confession (such as the weapon and the body) to go into the court as evidence. As such, the jury will never see these items as evidence, and if the prosecutors have no other good evidence, the killer is likely to be acquitted, even though substantive justice requires that the killer be punished (because, for example, the weapon and the body might prove the guilt beyond reasonable doubt due to the fact that the killer knows where the weapon and the body are, and the weapon contains the killer’s fingerprints.) Li contends that procedural justice in the US triumphs over substantive justice, because in the end, the judge will claim that justice is done simply because the pre-determined procedural rule (e.g., illegally obtained evidence is not admitted in court) is consistently and transparently applied. )
He states as to why it is necessary to emphasise procedural justice? The reasons for that he sets out as the following:
The general answer is yes. In a system that sacrifices procedural justice for the sake of substantive justice, the danger of arbitrary government power and the threat to individual liberty will be too great. Eventually, that system will lead to substantive injustice as well. In contrast, in a system that emphasizes procedural justice, arbitrary government power will be checked, liberty will be protected, and substantive justice will be preserved in the long term (if we believe that truth is best obtained through contest and debate between equals).
He then goes on cite that procedural justice has at least three values which he elaborates as the following:
First, without fair and just procedure, there is no guarantee that the end result will be just (that is, substantive justice cannot be guaranteed). As such, procedural justice is seen as a necessary condition for substantive justice. This is why the western legal tradition places a much higher value on formal or procedural justice than its East Asian counterpart, which puts more emphasis on substantive justice. In fact, some western legal scholars regard procedural justice as the only workable method for reaching substantive justice, and to these scholars procedural justice should be the only concern of the players within the formally rational legal system.
Li argues that the focus is on the form of law in Western jurisprudence because of the existence of a constitutional guarantee on the substantive justice by law, which has given it the definition of law. He states : "Unfortunately . . . the formalistic school of jurisprudence completely overlooks . . . the fact that the formal definition of law presupposes the constitutional state ". He asserts that the western legal scholars have been living in a constitutionally viable state for so long that they are used to forgetting the importance of the just content of law. He concludes:
" We Chinese do not have such luxury -- we do not have a constitutional state yet. When we talk about legality in China, we should not focus only on the form of law; we should also pay particular attention to the content of law. In fact, without a constitutional state, we probably cannot guarantee anything: neither the content nor the form of law can be guaranteed to be just. In other words, without a constitutional state, neither substantive justice nor procedural justice, either in lawmaking or in the application of law, can be guaranteed ".
Chinese infringements of the rule of law
i) Rights of Fair trial
The execution of a death sentence on an expatriate prisoner in China at the New Year ‘s eve in 2009 has brought into the limelight the legal process that leads to the enforcement of the capital punishment in the judicial system. It was performed by the Chinese authorities without informing the family members who were present in the capital of the timing of the condemned man’s death. While China still retains capital punishment, it has made a commitment to the policy of strengthening the procedural guarantees related to its enforcement. The referral of all death penalty cases to the Supreme People’s Court is an example, but in the most recent case the execution of UK national Akmal Shaikh, has caused a fallout that has damaged its reputation of judicial impartiality.
The death by lethal injection of Shaikh in a Bejing jail on 29 th December 09 for smuggling heroin into the country came despite there being some evidence that the accused may have suffered from mental illness. The Chinese authorities did not invite a mental expert to review his profile despite defence requests. The UK based organisation Reprieve that campaigns against death sentences of prisoners has divulged that China’ s Supreme Court ignored advice from their own panel of experts in executing the prisoner.
In an article in the Guardian newspaper published in London on 10 January 2010 there are two new documents from China that raise disturbing questions about the decision to execute „mentally ill‟ Sheikh. The first document, from the People's Supreme Court, reveals that judges were advised by their own 'expert panel' to grant Shaikh an immediate mental health assessment. The panel consisted of five highly distinguished independent Chinese advisors, two legal experts and three mental health experts. It was appointed by the defence to give independent advice in line with Chinese law.
The panel's unanimous recommendation to the Court was that a full mental health evaluation be carried out; however the courts refused to follow this advice, and failed to acknowledge that they had even received it. In a separate document Reprieve has disclosed a letter from Shaikh, sent before his death. The text contains disturbing details of his isolated and confused progress through the Chinese justice system and shows that he did not understand the procedures being used against him. According to Reprieve ’s director Clive Stafford Smith this “exposed serious flaws in the Chinese legal system, ”which cannot be ignored.
ii) Right to be informed of the charges
These considerations of respecting defendant’s rights has surfaced in the Chinese authorities arrest in Shanghai of four employees of the Anglo-Australian mining company Rio Tinto Ltd on July 9th. They were arrested without warning and detained on charges of stealing China's state secrets. These included Stern Hu, general manager of the company's Shanghai office, who was also in charge of the iron ore business in China, according to the Shanghai municipal state security agency. They were arrested when officers from China's Public Security Bureau raided the Anglo-Australian mining group's Shanghai offices and removed computers used by each of the four executives.
The ‘Age’ newspaper which was covering the story of their arrest reported on 10 July ‘09 that the Australian Government was seeking urgent consular access to Stern Hu, an Australian passport holder among the arrested men. It stated that the company and Australian diplomats had been given no reason for the arrests. The arrests come in the middle of acrimonious negotiations over iron ore sale contracts and Chinese anger over Rio Tinto's decision earlier in the year to abandon a $19.5 billion (£12 billion) deal with Chinalco, the state-owned metals group, in favour of a joint venture with BHP Billiton, its bitter rival.
The report stated that price negotiations had not been solved and on 30 June Rio had refused Chinese demands for a bigger price cut and that Rio's team had avoided meeting the Chinese for more than a month over concerns that their phones and emails were being bugged and that information was finding its way straight back to the China Iron & Steel Association. The team had flown to Hong Kong and Singapore for meetings instead, the paper claimed.
The Chinese Prosecutors approved the arrests of four employees of Rio Tinto a month later on charges of trade secrets infringement and bribery, according to a statement of China's Supreme People's Procuratorate in August 11th Their investigations had revealed that the suspects had obtained China's commercial secrets through improper means and that prosecution authorities found evidence to prove they were involved in commercial bribe.
However, the Chinese have never gone public with what the men are accused of stealing. On 11th January 2010 according to a UP report a Chinese official has stated that the Police have concluded their five-month investigation into the activities of the men, and handed the case to the Shanghai public prosecutors to decide if the men have a case to answer. Their decision could take up to six weeks for the prosecutors to decide the industrial espionage case against four employees of the company. The company denies all charges that the defendant’ s are guilty.
iii) Treatment of minorities
There are 55 recognised ethnic groups in China which are protected under the Article 4 which states : "All nationalities in the People's Republic of China are equal". The government argues that it has made efforts to improve ethnic education by a quota system reserved for ethnic minorities and by exempting them from the one child policies that is the norm for Han Chinese. However, the government has cracked down on those regional minorities who seek greater independence or political autonomy, mainly Uyghurs in rural provinces in the west of China. Their insurrectionary movement in the Xinjiang Uighur Autonomous Region of China (XUAR) has been met by the extra judicial killings.
In a report by the Human Rights Watch entitled Devastating Blows:Religous Repression of Uighars in Xinjiang there were documented sources of extrajudicial murders of people of Uyghur origins. The findings state as follows:
Uighurs are - almost without exception - the only ethnic group in China to be routinely executed for political offences. Since September 2001, China has used the US-led "war on terror" as an excuse to oppress Uighurs with impunity, persecuting many who have peacefully protested their treatment. Uighurs have been jailed for reading newspapers sympathetic to the cause of independence.
These assertions have been corroborated by an Amnesty International summary which goes on to assert that there are tens of thousands of people who are reported to have been detained for investigation in the region, and “ charged or sentenced under the Criminal Law; many Uighurs are believed to have been sentenced to death and executed for alleged “separatist” or “terrorist” offences. The report also states that the Uighars online forums were closed by the Chinese government back in 2008, and the Chinese government has pressured other countries to refuse asylum to those they deem criminals, much in the same way it happened with 17 Uyghur detainees in Guantanamo Bay detention camp, who had been released but China pressed countries not to accept them.
Linguistic differences in interpreting law
The Chinese ideal may be at variance with Western jurisprudence, however, the clash of the two concepts has to be set against variables in the linguistic and legal formulations. In relation to the integrating of law in substance the theory of a French philosopher of the 20th century Michel Foucault, in The Order of Things : Archaeology of Knowledge is instructive. He bases his methodology on a combination of historical, philosophical, epistemological, and linguistic analyses, and sets out his framework by connecting with the utilization of discourses of those who wield power in society, and through which the social order receives its classification.
In his chapter on ‘Justice’ he states that the legal system itself makes it impossible, by setting up a social power structure where a supposedly neutral judge pronounces supposedly neutral judgments in a setting of organized superiority and subservience. He argues that justice is a bourgeois conception in its existent form and an idealistic concept has to be striven for, by which, he means that the “strategies and tactics of power” are more important. However, he then argues that revolutionary groups cannot establish a more acceptable justice unless they move away from the justice system itself, otherwise they re-institute the unjust bourgeois concept of justice. He favours a “popular justice, while requiring some form, is a relatively spontaneous expression of the masses and occurs outside a justice system” .
In another treatise entitled The Order of Things: An Archeology of Human Sciences hedelivers his link between law and language by stating :
"This passage [in Borges] quotes a 'certain Chinese encyclopedia' in which it is written that 'animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i.) frenzied, (j) innumerable, (k) drawn with a very find camelhair brush, (l) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies.' In the wonderment of this taxonomy, the thing we apprehend in one great leap, the thing that, by means of the fable, is demonstrated as the exotic charm of another system of thought, is the limitation of our own, the stark impossibility of thinking that."
While most people would regard this classification of animals to be ludicrous, Foucault views it as an opportunity to recognize the limitations of our own classificatory system by which we would not think of this alternative. It is also presumed by many that people merely presume that their own presently accepted classification scheme represents an objective reality, there really are numerous alternative classification schemes. A particular classification scheme really is a cultural code of interpretation, what Foucault usually calls "a discursive formation"—that is, a set of deep rules for ordering that is embedded in our language.
Foucault then elaborates on the notion of ‘sovereignty’ which he defines as political rights and authority that arise by the decline in monarchy. His focus on the juridical – political theory, which he states attends to the State apparatus (e.g. the legislative, executive, and judicial branches of government in the U.S.) in a way that ignores more particular functioning of power in society. Those he states disguises the more basic type of disciplinary power that has arisen in bourgeois society and is the source of control and transformation of political rights and authority. He intends that the scientific inquiry has to carried by a process which would provide a more objective account of the world. This he elaborates has no given theoretical basis in science as an ultimate account; but it can be more objective than previous attempts at constructing a legal process.
However, this approach has been criticized by those theorists who reject Foucault's archaeological method in recognition of a greater role for a humanist view of history. They agree with him in his rejection of a concept of objective knowledge based on pure facts and pure reason; and in rejecting the idea of the autonomous individual uninfluenced by the social context, however they consider it wrong to extend these rejections to an utter repudiation of man having reasonable knowledge of an external reality and in being a creative and rational agent. This is an ideal that supports the development of an account of the human sciences that places greater faith in rights of man and in negating Foucault’s proclamation of ‘the death of Man’. If the Foucaultian principle of the archeological method is applied then some form of natural rights does exist in China even if it is subordinated to the general good of society. This relies on postulating a Chinese version of natural rights based upon the Confucian ideal. It pays regard to the logic of Fa Xing, of a body or composition of laws which define the sanctions available against an individual who acts beyong his set limits and the penalty that he has then to bear. The traditional inference of the Chinese character Fa is inherent in the meaning attached to a value system that is equal to fairness, correctness and being just. It is contingent on its association with social rightness.
The epistemology that Foucault relies is that language is the key to the formulation of concepts expressed as commands. There is even within the context of social and cultural differentials that natural rights in China exist in the belief that a large community can be ruled by consensus. The continuing use of a customary structure, which can override li has been successful in maintaining the unitary nature of Chinese society.
Rule of Law and Natural Rights
Despite Focaults analysis the connection between the rule of law and the ‘form ’ of law is necessary to determine whether there are any rights reserved for the citizens against the abuse of power. This leads directly to the theory of ‘inalienable rights’ that could be defined as natural rights, which is a universal right inherent in the nature of living beings, and one not contingent upon laws and beliefs. It can be contrasted with the concept of a legal right, that is one created by the law making sovereign and enforced by the government. The question of which rights are natural, and which are legal is an important one and the proponent of natural rights argue on the basis of a ‘ social contract’ that all human rights have legal rights.
The theoretical framework of natural rights presented by Joseph Raz, a Professor of Legal Philosophy at Balliol college, Oxford, is instructive in this regard. He draws his ideas together in the Authority of the Legal System, under the banner of eight principles, which he states will bind the government to a rule of law and to respect a basic rights framework. These are the following: (i) all laws should be prospective, open and clear (ii) laws should be relatively stable (iii) the making of particular laws should be guided by open, stable and clear rules (iv) the independence of the judiciary must be guaranteed (v) the principles of natural justice must be observed (vi) the courts should have review powers (vii) The courts should be easily accessible, and (viii) the discretion of crime prevention agencies should not be allowed to pervert the law.
By this criteria Raz refers to rules that guide the human behaviour, but he contends that there is no necessary conceptual relationship between law and morality. This is because a law does not cease to be a law by being unjust or immoral based on the critical approach, that the knowledge of basic goods as the fundamental question in natural law theory is too abstract. He states that we cannot derive from a metaphysical study of human nature and its “ potentialities and actualizations” the conclusion that certain things are good for human beings, and thus the primary concepts of natural law that it is immutable is not achievable.
Raz argues that although the rule of law (and compliance with it) can be morally important and even a moral virtue (because it is normally necessary for fully just government in a just society, and especially for alleviating dangers that arise from the existence of political authority, and of law itself), it is nonetheless in itself morally neutral since (in states which employ the forms of law), it will normally be needed even by deeply unjust rulers for advancing their immoral purposes.
His important definition is in the normative function of law where he expounds on his rejection of natural rights by stating that legal rights are of little value unless they are de facto rights, and can also be enforceable by those willing to do so. He contends that natural right is not a legal right, but a normative right, that does not protect anything, and instead receive the protection. This means that they can be invoked as in the case of right to life or liberty. The function of natural law is not conceptualised to protect any claims, but rather to inform which claims deserve protection.
He sets them out in a three way distinction of rights:
i) Normative rights: the claims that ought to be respected and protected.
ii) Legal rights: the claims that a given legal institution officially announces it will respect and protect.
iii) De facto rights: the claims that actually receive respect and protection in a given society.
In his example of the rule of law in China, he states that when someone switches between stating that there is no right to free speech and stating that the right of the Chinese people to free speech is being violated, he probably means one of the following things:
- The Chinese have a normative right to free speech, but no legal right.
- The Chinese have a legal right to free speech, but no de facto right.
- The Chinese have a normative right to free speech, but no de facto right.
Indian constitution and the Rule of law
The road to developing legal principles has taken the two predominant countries of Asia on very different routes. Unlike China, which has been through a revolution and a Maoist cultural transformation, with an object of achieving proletarian dictatorship, India arose from colonialism with a top heavy bureaucracy and a Congress party whose manifesto was secularism. From its inception the first Indian Constitution that was passed in the Constituent Assembly on 26 November 1949, came into effect on 26 January 1950 enshrined the abstract ideals of “justice, liberty and equality” in its preamble. The Constitution has been made the supreme law of the country and other laws are required to be in conformity with its spirit. Any law which is found in violation of any provision of the constitution is declared invalid.
In Part III are set out the guarantees of fundamental rights with the enactment of Article 13(2) which provides that the State “ should not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void ”. Article 19 guarantees the six Fundamental Freedoms to the citizens of India, ie freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to live in any part of the territory of India and freedom of profession, occupation, trade or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by the State.xxxi
The rule of law underlies the various clauses, such as Article 20(1) provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act and be not be subject to a penalty greater than that which might have been inflicted at the time of the commission of the offence. There is also provision against double jeopardy under Article 20(2), which states that no person shall be prosecuted and punished for the same offence more than once; Article 20(3) makes it clear that can no forced self incrimination by a witness against himself.
However, while the India Constitution is supreme it does not have an over weaning authority such as the Communist party in China whose politburo wields ultimate power. The Congress party which was instrumental in negotiating the independence of India does not have an institutionalised place in the constitution of the country. It does provide the citizen the notional right to challenge under Article 32 the executive’s abuse of power by investing the judiciary the right to encroach upon the legislative if its action is male fides. xxxii
The Supreme Court of India in the 1970s set out a doctrine of rights that upheld the principle of rule of law in the constitution. The litmus test was the emergency declared by the government of Indira Ghandi, who as Prime Minister tried to push through acts by evading the Parliamentary procedures. xxxiii There were two cases which were instrumental in protecting the rule of law as embodied in the Indian constitution.
In Indira Gandhi Nehru vs. Raj Narahr Alit 1975 the Lok Sabha inserted the Article 329-A into the Constitution under the 39th amendment. This provision allowed certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridged the basic structure of the Constitution.
There was a landmark judgment in A.D.M Jabalpur vs. Shivakant Shukla (1976) which was based upon the emergency declared on 25th June 1976 proclaimed under Article 359. It led to a large number of people being arrested under N11SA (Maintenance of Internal Security Act. 1971) without informing them of the grounds for arrest. Some of the detained filed petition in High Courts for writ of Habeas Corpus by contending that their detention is in violation of Article 21. It was argued by the government representatives that protection under this Article was not available during an emergency. The Higher courts rejected this Preliminary objection not to file writ petitions during the emergency.
The Government of India then filed appeals before the Supreme Court and the question before it was, whether there was any rule of law in India apart from Article 21 of the Constitution. The Court ruled by a majority that there is was no rule of law other than the constitutional rule of law. If it was suspended then there was not rule of law as it guarantees personal liberty and states that no “ person shall be deprived of his life or personal liberty except according to the procedure established by law ”.
Machinery of the Criminal Justice System
The Indian criminal legal code was promulgated by the British in 1861 as the Penal Code Act in 1861. It is still in force with a few amendments. While the death sentence is allowed as a criminal sanction there is provision for the death sentence to be commuted to a rigorous life sentence under Articles 72 and 161 of the Constitution of India, if pardon is granted by the power of the President or the Governor. Where as in China there is a reluctance to disclose the underlying causes of imposing the death penalty the Indian Supreme Court has emphasized that the death sentence has two main criteria that it should be retributive and that it should act as a deterrent.
In Sher Singh v State of Punjab (1983), the most important aspect in this case was that the Supreme Court recommended to the government with regard to petitions filed under Articles 72 and 161 of the Constitution or under sections 432 and 433 of the Criminal Procedure Code to be disposed off expeditiously and with in a reasonable time frame. The Supreme Court also observed that regard should be had to the death row inmate who must contend with a segregation, immobility, and the prospect of harassment by the staff.
The Court stated that there must also be consideration of the pending appeals, unanswered bids for commutation, and possible changes in the law which place a burden on the executive has power, in appropriate cases to act under the aforesaid provisions as delays tend to shake the confidence of the people in the very system of justice.
The Indian criminal justice agencies have been just as vigilant as their Chinese counter parts in keeping the foreigners who visit their country under surveillance who may be exceeding their prescribed limits. In early 2010 the security agencies apprehended British tourists who were conducting extensive monitoring of planes and conversations of air traffic controllers. These transcripts were being logged on computers and cameras were being used.
The report of the UK plane spotters were charged by the Indian government under the Traffic Act Section 21 of spying. Their interception of communication was deemed an offence by the Indian government who indicted the men before the courts of law. The arrests happened during a security crackdown in the wake of a bomb blast in the Indian city of Pune, the country's first such explosion in over a year. These men were fined and released after one month’s detention in a judgment that was clearly quite lenient compared to harsher penalty had they not been British nationals. xxvii
The Indian security forces have come in for criticism for clamping down on Muslim separatists in Kashmir as has China in the Uighar region. The state agencies who have been fighting an insurgency in Kashmir have barred human rights organizations from entering the region where the conflict has taken place. There is a report by Amnesty International dated 18th April 2008 entitled Thousands lost in Kashmir mass grave. The report mentions that hundreds of unidentified victims are buried in a vast compound; it also mentions enforced disappearances, torture and other abuses that have been found in the area under the army. The NGO has urged the Indian government to launch an urgent investigation into the mass graves and other alleged abuses since the insurgency began in 1989.
There is a further anomaly that has retarded the efficiency of the Indian justice system. This is the clogging up of the court cases that are pending a hearing in the courts. In India there is a higher proportion of cases that have backlogged than anywhere else in the world and this is manifest in the delays facing prisoners who have not been brought before the courts, or who have an appeal still unheard. xxxix In a recent report by the Asian Legal Resource Centre (ALRC ) based in Hong Kong the apprehension is expressed that endemic delays are undermining the justice system. xxxx
In the report summary issued on 21 July 2008 the ALRC ’s executive director Basil Fernando states that "Simply put, when it takes years and even decades for the courts to resolve simple criminal cases, the description of this system as a system of justice is an utter joke. Although the report was on Delhi, it could be read as indicative of the conditions across the whole of India were even worse ". The report cites that on the ordinary working day of 16 November 2007 a single magistrate had the awesome number of 74 cases to examine.
Fernando’s findings reveal that in the sessions courts the overwhelming majority of cases had been pending for more than a year. It found that around 67 per cent of the pending criminal trials were one to five years old, 12 per cent six to ten years, 4 per cent 11-15 years, and around 2 per cent more than 15 years old. On November 16 a mere 14 per cent of the matters had come up for trial in the same year as the crime had allegedly occurred. Similarly, in magistrates courts approximately 51 per cent of cases were between one to five years old, 21 per cent six to ten years old, 7 per cent 11-15 years old, and around 1 per cent pending for more than 15 years. In these only 20 per cent of the matters taken upon the day studied pertained to 2007.
Conclusion
The original question posed by Bo Li in his treatise of the absence of liberal constitutionalism in China is to arrive at a judgment based on western presumptions and upon linguistic conceptions. The basic norm of China are the traditions of a Confucion logic which are a binding set of customary codes that provide a higher moral sanction of a state that is unitary and not one whose democratic credentials are pluralistic. This theory is supported by Focault in his anthropological study of Chinese norms than Raz whose fix definitions are too abstract for much practical application.
The notion of there being no grounds for a rule of law in China is not a good fit for the present developments because the concept of fǎzhì itself infers governing the nation in accordance with law, even if that is within the premise of a socialist legality. The fact that the western legal terminologies have been recently been imported within the framework after the reign of the last Emperor. The Chinese revolution in 1948 brought a new set of rules that of an omnipresent Communist party that held sway over the lives of the people. This meant that the people were judged not on individual rights but on the basis of their contribution to society ‘s objectives.
This may not have accorded with the liberal constitutional model but the changes that have come into effect after the Cultural revolution in 1978 have been profound. In the recent period as Peerenboom ’s study suggests that there has been a legal revolution launched in China, that sets out a struggle between the rule of law and democratic rights. This is a prelude to changes that are evolutionary and can be a one way street to China becoming a more constitutional state under a liberal aegis.
However, in terms of achieving transparency there is still a distance between China’s aspirations to be a state with a concept of law and its practical treatment of dissidents, prisoners and minorities. As can be observed by the manner of its treatment of death row inmates, disclosure of evidence and proscription of minority groups the country needs to shred its feudal burden. While the Confucian ideal of deference to authority is positive in keeping China a unitary state at peace with its rulers it is necessary to respect the right to a fairness. If it has to attain an indigenous democracy in its own cultural frameworks then it should frame a law that is less secretive and one which is capable of legal innovations.
By comparison the Indian constitution is an example of a modern nation state that has striven to commend itself to a democratic framework. It has an elaborate, written constitution with most liberal strands of Western jurisprudence interwoven into the fabric of the legal system. There is an elaborate due process mechanism and the judiciary acts to review the validity of administrative action, which has led to precedence based law that has managed to safeguard the civil liberties by recourse to Article 21 of the constitution.
However, the state has not been able to redeem the ethnic or caste divisions, relieve poverty or erase the bureaucratic corrosion that has been part of the framework of the Indian state. The upshot has been the misgovernance that has caused long delays in cases coming before the courts, the bureaucratic back logs and the abuse of power by those wielding the instruments of state authority. This shows that while India has achieved a balanced constitution with substantive fundamental rights guarantees it has not managed like China to alter the life of the masses.
The circumstances in which they can exercise those natural rights in their gift are not of real benefit because of their material conditions. The anti discriminatory laws set out in the Indian constitution have not been able to circumvent the social and economic inequalities that have been ingrained, and there is a bias inherent in a country with a huge gap between the urban literate and the rural communities.
In this prism the Chinese concept of law while pursuing indictments in camera against the condemned party seems incapable of judicial review it can show an ideological conviction. There is no linear concept of a rule of law because its phases accord with the aspirations of achieving socialist legality. While India aspires to universal values in its constitution the interpretation of statutory and judge made laws needs an impartial administrative practice to facilitate the implementation of justice.
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| DR. ZIA AKHTAR is has done his LLB and LLM from London University and is presently doing a PhD in law in Judicial Review and Ouster Clauses at Manchester. |
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