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George Washington University Law School

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Wednesday, August 12, 2009

He Weifang versus China's legal establishment on the "Three Supremes"

An interesting debate is going on over the doctrine of the "Three Supremes". This is the doctrine, credited to Hu Jintao and propagated by the new Supreme Court President Wang Shengjun, that political-legal work should uphold the supremacy of the Party's work, the supremacy of the people's interests, and the supremacy of the constitution and the law.

On June 25 of this year, the Supreme People's Court convened a conference on the Three Supremes attended by a number of prominent legal academics (i.e., most at at the level of dean and vice dean). I have to confess that when I sat down to read a report of their remarks, I was not expecting a lot. Clearly it was not part of the conference's agenda to call into question the whole appropriateness of the slogan. But I was pleasantly surprised. Of course, there was a certain amount of repetitious platitudinousness - six of the eleven contributors referred to the Three Supremes using the terms "organic whole" or "organic unity". But I thought that between the lines one could read a certain amount of pushback. Several of the contributors stated clearly that when it came to actual adjudication work by judges, there was only one supreme, and that was the constitution and the law. The place for the Party and the people's interests, in this view, was in the formulation of the law, and to allow consideration of these in the course of actual adjudication could easily lead to arbitrariness and corruption. Those making this and similar points included Jia Yu (President of Northwest University of Politics and Law), Wang Zhenmin (Dean of Tsinghua University's Faculty of Law), Han Dayuan (Dean of People's University Faculty of Law), Ma Huaide (Vice Dean of China University of Politics and Law), and Zhu Jiping (professor at Northwest Univ. of Politics and Law).

Needless to say, it is not exactly new to say that lawmaking activity should take into consideration what the Party wants as well as the interests of the people, so to relegate those Two Supremes to that realm is really to deny that the doctrine of the Three Supremes requires anyone to do anything they weren't already doing before.

He Weifang has a comment on the whole thing here. He doesn't necessarily criticize the attendees for what they said - indeed, he notes astutely that some of the attendees (he singles out Han Dayuan and Jia Yu) essentially reduced the Three Supremes to nothing by transforming them into a One Supreme (the constitution and the law), and suggests sarcastically that perhaps they were invited by mistake. There is some suggestion that perhaps they should have pointed out the inherent contradictions in having three supremes, and he notes their failure to address the reality that conflicts among those three supreme goals could exist. But his real complaint seems to be that they showed up at all for this kind of ceremonial rite, and suggests that they have sullied the reputation of scholars - including their own reputation - by doing so. Noting that all but one are all colleagues and friends whom he knows personally and respects, he ends by sighing for them.

SUPPLEMENTAL POST: Eva Pils of the Chinese University of Hong Kong points out that I have perhaps understated He's criticism of the doctrine itself. My purpose was to discuss what he said about his colleagues more than what he said about the doctrine, so I didn't address that part. I'll just add her remarks, with which I agree:

  • He compares it to the doctrine of the Holy Trinity in Christian religion, and says that in the case of the Holy Trinity, there was no way of producing a rational argument or proof, hence the doctrine was declared to be based in some sort of mysterious (or divine) communication. (虽然人们从《新约全书》里可以发现“三位一体”学说的权威依据,但是这毕竟是一种难以作出验证的事项,所以教会宣称这属于“奥秘”的“启示”,无法用理性作出论证,只能因为信仰而接受)
  • He provides the example of someone accused of ‘counterrevolutionary’ activity at the time and rehabilitated later, pointing out how difficult it would be to adjudicate that sort of case fairly, using the new doctrine.( “文革”不就是一个殷鉴未远的例子么?当年张志新对于“文革”提出非议,结果被以“反革命罪”起诉。面对这样的起诉,法院如何判决才是符合“党的事业”或“人民利益”?那时的法院当然判处无期徒刑,后来又改判死刑立即执行。只是“文革”后不得不平反,因为只有平反才符合“党的事业”和“人民利益”的要求.) 
  • In the last paragraph, he laments not only the loss of scholarly reputation but also the damage the new doctrine has done in judicial practice. (“三个至上”就是一句不适当的口号,将其作为司法机关的指导思想必然——实际上已经——带来法律实施中的巨大混乱。在学界不断批评,司法界怨声载道的今天,最高人民法院不仅不迷途知返,幡然改过,反而变本加厉…)

http://lawprofessors.typepad.com/china_law_prof_blog/2009/08/he-weifang-versus-chinas-legal-establishment-on-the-three-supremes.html

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