By David Bandurski — The “elude the cat” incident continues to draw some interesting responses, particularly in China’s editorial pages. This time, we spare readers our badgering thoughts and observations and cut straight to the source. Some of the best coverage — thanks to Bill Bishop for the tip — can be found in the most recent issue of Caijing magazine.
The following is a partial translation of an editorial by Xiao Han (萧瀚), Caijing‘s chief legal counsel.
Xiao looks at the “elude the cat” case and argues that China lacks the basic institutional conditions necessary to bear out truths that the public finds credible — “namely, judicial independence, making the investigative process public and freedom of speech.”
Due entirely to time restrictions, we have left out several paragraphs, all of which are valuable. We strongly encourage readers of Chinese to give the piece the time it deserves:

Truth and Authority
Xiao Han (萧瀚)
The most important lesson in the establishment and experience of the “online investigative team” in the “elude the cat” incident is in that it reminds all of us: if we cannot effectively improve our basic institutions then we cannot provide the most basic mechanisms to guarantee the truth, and all other extrinsic efforts will come to nothing.
When the “online investigation committee” set into motion and directed by Yunnan’s deputy propaganda chief Wu Hao (伍皓) became involved in the “elude the cat” incident, this drew even more widespread attention [to the case]. But up to now this investigative committee’s report has been unable to draw any of its own conclusions. For anyone with a basic knowledge of China’s current legal system and a basic familiarity with our judicial system, this result can only be seen as normal. In nations with the strictest traditions of rule of law such as Britain and America, the hope that this sort of “online investigative committee” might draw out the truth behind a death case is inconceivable and not something to be taken seriously. How far must the credibility of state judicial authorities sink before people will place their hopes in an investigation of this sort?
The key point does not lie, in fact, in the question of whether or not this “online investigative committee” can draw its own conclusions in this case. It is in not reaching a conclusion that they have acted responsibly, not the opposite. The committee has no legal capacity to investigate this case, nor do they have the kind of legal authority vested in the prosecutor’s office. So it is only natural that the committee should reach no conclusion. This case does have symbolic meaning for social mentality and for public opinion in present-day China — symbolic because the fact that Web users have participated in an investigation in the capacity of ordinary citizens means that a judicial process that has hitherto been beyond public scrutiny has now shown a basic mentality of openness to the public, and this is something to be praised.
Nevertheless, we should not overstate the significance of this, and indeed we should be alarmed under certain circumstances. If situations like this one [in Yunnan] are not institutionally chaperoned, it is entirely conceivable they will bring two ugly consequences: first, the judicial process might be unjustifiably intruded upon by inexpert members of the public, resulting in lack of judicial independence; second, if a professional legal system is not supported by benign institutions, the truth about cases will be abandoned to a cycle of endless public suspicion regardless of whether or not the facts actually emerged in the result rendered by the justice system, and the administration of justice will lose all credibility and authority.
It is plainly inadequate to look to methods like this “online investigation committee” to avoid these two unwanted consequences. This is because the revelation of facts in important and particularly horrifying cases relies on the [justice] system itself. If there is no institutional support [for the truth], extrinsic conditions [like Web user committees] will not bring the truth out even if they are improved. Customarily . . . the bearing out of the truth relies on several basic institutional conditions, namely judicial independence, making the investigative process public (in this process lawyers can enter the picture) and freedom of speech. These institutional conditions are the preconditions for the retaining of truth in any society. China at present lacks these basic institutions.
. . . The problem is that when these three basic conditions are lacking, this creates a situation in which the authority of public power overrides society itself, and this is tantamount to public power being elevated above society [and beyond the lives and psychology of citizens]. This necessarily results in public power’s loss of credibility and authority. Some cases [in China] have arisen as a result of government offices monopolizing information channels, so that the situation becomes, “Whatever they say is subject to disbelief”; and yet the same investigative outcome, if rendered by an impartial and independent news organization, might be met with a definite degree of trust.

[Posted by David Bandurski, March 3, 2009]

David Bandurski

CMP Director

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