The following is a guest post written and translated by K. Drinhausen.
The first few months of this year of “online politics” saw a tech-savvy Wen Jiabao chatting with the online community and a series of praise for netizens and their ability to uncover corruption as well as deficits in the legal system and criminal prosecution. While government actions like integrating netizens in investigative and administrative processes may have seemed like publicity stunts, it still suggested a stronger participation of the public in bringing about a more just and open society.
But lawyers and jurists have long raised concerns about those “public justice movements”, including the legally disputable “human flesh searches”. The twists and turns in the recent case of Deng Yujiao and the questionable outcome that was attributed to the strong public interest in the case (Deng Yujiao was found guilty of using excessive force but was still released) further heated up the discussion.
One of the much cited commentators was He Weifang, a former law professor at Beijing University. In a blog entry (also published in China Weekly) he takes a look at the difficult relation between the power of the internet and the judiciary system. While his arguments about the pros and cons of online vigilantism have also been brought up in other places, his observations on the inner dynamics and self destructiveness of these interactions prove to be of special interest. An interesting analysis especially in the light of the recent wave of harmonization…
Translation: Challenges to the Judiciary in the Age of the Internet
It doesn’t matter if you like it or not, the public discourse has doubtlessly entered the age of the internet. More and more people depend on the internet for receiving and disseminating any kind of information. The internet is where journalists are gathering clues for stories. Even in the remotest city and the smallest internet cafe people are exposing “bad news” to the world that the traditional media are trying to keep under the lid. Millions of bloggers are watching over this land of free speech, where neologisms like “push-ups” and “hide & seek” are emerging one after another. While these might originate on the internet, they are passed on to hundreds of millions by word of mouth.
And what a strange place it is! When you publish articles online, there are no longer the seemingly insurmountable difficulties you had to face in the traditional media, where quite often your pieces would be distorted beyond recognition by editors. Nowadays you press “submit” when you finished writing, and in an instant an article appears [lit.: transverses space and comes into this world]. And the emphasis should be on “coming into this world” as each [piece of information] can actually be seen in every corner of the world. This process of publishing information has become so easy that the popular will is virtually unfolding in front of everyone’s eyes and the caution and slowness that characterized the gone-by era of the written word are fading away.
But everything seems to change to an extent, where instead a lack of responsibility in the open discourse becomes a public trend. Some incidents that hit the public nerve will instantaneously evoke public rage and indignation. The reoccurring uproars of millions and millions of netizens in this albeit virtual space can give you a very real kind of feeling: “Masses shouting in unison: Kill!”
These situations are exerting huge pressure on the responsible decision makers. In this context, the interaction between the public discourse on the internet and the judicial system proofs to be of special significance. In past discussions of the relation between media and the judicature we devoted ourselves to determining basic sets of rules on three different levels:
1. How can supervision trough media be strengthened in the implementation of the law? The judicial power is a public power that the state exercises. Therefore the judiciary must be accountable to the citizens and subject itself to public supervision. Otherwise it will – like any unconditioned power – become vulnerable to abuse. In the ongoing process of promoting a modern form of democracy it becomes apparent, that in a time where the administration is becoming more and more specialized, active media can reveal shifts in the power structure and its influences as well as display the opinion of the people. Thus it can function as an effective restrain for official power.
2. But it is also essential to prevent the media from overstepping their boundaries to uphold the necessary independence of the judiciary. If the public opinion as expressed in the media becomes too powerful, or considers itself to be truth itself, or stirs up the popular will and thus exerts pressure on the judicial system, it can lead to a point where it is really the media that passes judgment on a case.
3. How can the judiciary system in reverse protect the freedom of expression and publication not only through relevant laws in the constitution but also in judicial interpretation and trials?
The kind of supervision over the judicial power that can be exercised through the internet is clearly much more rigorous and candid than in the traditional media. And this really is a welcome development. It is fair to say that without the massive power of the internet, cases like that of Sun Zhigang could not have been brought to the conclusion they finally got.
But at the same time the double sidedness of the media has become even more apparent in the age of the internet: While in some cases it can lead to a rather impartial trial, it also exerts a lot of pressure on the legal system and can thus force it to bow to the public opinion. [These processes] intensify the deviation between the dispensation of justice in the court and the principles of the law, thereby weakening the public credibility of the judiciary system. This again leads to a further marginalization of the judicial power. But expecting such a judicature – that is at a loss as to what to do and gets blamed for whatever it attempts – to safeguard the rights of freedom guaranteed by the constitution for its citizens is just not realistic.
Some are hoping to limit these “irresponsible” expressions of opinion trough a stronger control of the freedom of speech on the internet. But schemes like this obviously come at a high price and are easily misused.
First of all, administering the internet is simply not like regulating the traditional media. Every second there is a steady flow of different opinions pouring in, like a circle of life that can’t be stopped in its course. Deletion will stay an incomplete and insufficient option. Moreover, what kind of “opinion” should be deleted or not be deleted? Since adequate regulations can hardly be set beforehand, [these decisions] will be left to the obscure judgment of various departments. But different interpretations of the pronounced standards can easily lead to a severe imbalance in the amount [of information] deleted. Under the pressure of finding offences, the responsible administrators instinctively tend to be overtly strict when it comes to closing [sites], with a result that will most likely rather resemble “a massacre and slaughter of the innocent at will”.
But wiping out valuable discourses will turn the internet – a place that should be full of vitality – into a desolate wasteland. And in such an environment the supervision of the judiciary trough the media will inevitably become a meaningless phrase. But, as stated earlier, without supervision an impartial judicature cannot exist. So in the end it will be the same restrictions imposed on the freedom of speech that were originally intended to reduce the pressure on the judiciary that will ultimately lead to an even more unjust system. You could say it “started as a nobleman, but ended like a crook”.
The bottom line is: The root of the problem does not lie in the popular will itself, but in the lack of judiciary independence. Independence means that the court takes the constitutional law as it’s only guiding principle in its decisions, without fearing any other kind of power or having to listen to the public opinion that can vary widely from case to case.
Let’s suppose a judge decides a case according to the law but the outcome is not in accordance with the public opinion. Then what should be thoroughly discussed is how the legislative body can revise the law itself to ensure that it represents the interest of the citizens. But if you let the judge abandon the law in favor of the popular will in his decisions, this will inevitably lead to a state of confusion in the dispensation of justice.
While in some of the cases that generate wide-scale debate, the judge or court are spared from guessing and interpreting what the public opinion might want, all these incidents on the internet eventually will “gang up” and gain territory. Then a “just and fair” judicature will even more resemble an empty phrase.
The paradox is that our judiciary system is obviously doing its utmost to gain the respect of the public, even to the point where passing a sentence like the death penalty is dependent on the public opinion. But the gushing arrival of the public opinion is again fearfully avoided – although it is too late. This makes you think of two idioms: The new expression ” Not acknowledge ones mistakes till the end ” and the old saying ” Profess love of what one really fears “.
In 2008 He Weifang demanded the abolition of the much criticized petition system. After he signed the Charter 08 he was “transferred” to Xinjiang, where he enjoys the landscape and has more time for writing and updating his blog.