Heather Smith
Justice D103
Mr. Garrett-Goodyear
April 25, 1988
INTRODUCTION
The
People's Republic of China has been struggling with the why and how of justice
systems since its inception in 1949.
When attempting to put together a survey of China's ideals and practices
of justice from 1949 to the present, one gets the sense that the PRC is
searching for its ideal legal system on a sort of trial and error basis. (No
pun intended) Ever since China began to
break away from the Soviet model of a communist state in the late 1950's and
pursue an ideal of its own, it has had no example of what a communist legal
system should be. Consequently, the
Chinese system of justice has, in the past four decades, changed from a nominal
system completely controlled by the Communist Party to a non-existent entity to
something somewhat resembling a western system of justice (but still very
influenced by Party decisions). Similar
to its tolerance of some capitalism in the management of its economy, the
leadership of the PRC is currently letting some western ideas of justice and
legality be implemented in China's developing criminal and civil law. China desires a strong justice system that
will deter crime in its huge population and effectively prosecute all
"counter- revolutionaries" and enemies of the state. At the same time, China is also seeking a
legal system that will guarantee essential civil rights to its citizens in an
effort to motivate them to be more productive and more active in the
improvement of the state. In its drive to be the ideal communist state, the
People's Republic of China has had to decide whether these two goals are
compatible and, if so, how.
The Early Years of the People's Republic of
China
Soon
after the Communist victory in 1949, the existing legal structure of the former
Nationalist government was dismantled, and in its place was put a system
resembling the Soviet Union's judiciary.
The old system was that of an independent judiciary, headed by a council
of grand justices (much like the U.S. Supreme Court) that was empowered to
review and interpret the Constitution and laws. Many of the officials of that Nationalist legal system had
received their training in the West, and, as such, were looked upon with disfavor
by the new government. Although one-half
the personnel of the old system were re-assigned during the first two years of
the PRC, the new government found that it could not manage a legal system
without the expertise of those familiar with the intricacies of law and legal
procedure. Reluctantly, the remaining
personnel from the Nationalist judiciary were kept in the new PRC judiciary,
with the justification that their conversion to the communist revolution would
come about in short time.
The
legal profession was abolished in favor of "people's advisors", who
were legal advisors to the general public who had been strictly trained in
Chinese Communist Party policy and ideology.
The Party replaced the remaining posts in the judiciary that had once
been held by the Nationalists with "new legal cadres". These cadres were not legal professionals;
they were given their positions on the basis of ideological fervor and past
service to the Party. Many had very
little formal education. Although the
new legal cadres were usually not assigned to the "law schools" (the
schools for the people's advisors) and committees for law codification, they
were assigned to the lower trial courts and the public security bureaus.
Conflict soon developed in the staff of this new legal system that
consisted of one-half western-influenced legal specialists and one-half
Marxists ideologues with little experience, if any, for the jobs they
held. The former Nationalists put their
faith in the "rule of law" and pushed for adoption of a criminal code
and criminal procedure, as well as a Constitution (China's law from 1949 to
1954 was a document known as the "Great Program"). The new cadres viewed such measures as
attempts to insure the dominance of a "legally-knowlegeable" class
over a "legally-ignorant" class.
Because they were new to the legal system, the cadres questioned all of
the notions about the purpose and necessity of law. The cadres opposed the establishment of a complex legal code; law
should be simple, they argued, so that it will be understood by all of the
people. Instead of societal control
through the threat of legal punishments, the cadres favored the elimination of
crime and opposition to the state through a system of continuing education and
"reformation" of wrongdoers. The cadres were the designers of the
"persuasion-education" programs mentioned in the primary sources on
the Chinese legal system in this report.
The
Chinese judicial system from 1949 to 1966 fluctuated between the programs of
both these factions, depending on which one gained the most political power at
the time. From 1951 to 1952, the new
cadres gained control and, in accordance with their priority on the security of
the communist state, secured a tougher stance toward prosecution of enemies of
the state. By 1954, the legal
specialists had taken control, and they managed to make great headway in the
codification of Chinese criminal law.
The Constitution of 1954 was a direct result of their influence during
this time. This move toward a
"modernized" Chinese legal system continued until 1957, when the
political pendulum swung back toward the new cadres. The Anti-Rightist Campaign of 1957-58 reversed many of the
changes secured in the preceding years.
The Ministry of Justice was abolished, as was the "people's
advisors" profession. In the
particularly violent campaign, many of the legal specialists and judicial
officials lost their jobs and were perseucted by masses of Chinese citizens
accusing them of being "class enemies." The most significant effect
of this campaign was the transfer of so much judicial power to the police
agencies. By the end of the 1950's in China, there was no distinction between
the arresting and prosecuting authorities. Although the Anti-Rightist Campaign
ended in 1958, the Chinese judiciary never returned to what it had been prior
to 1957.
The Great Proletarian Cultural Revolution
The
new Chinese legal system, already crippled by the Anti-Rightist Movement of
1957-58, was dealt a deathblow by the decade-long Great Proletarian Cultural
Revolution. Begun in 1966, the Cultural
Revolution resulted from a struggle between leftist and moderate factions in
the Party, with Chairman Mao situated in the middle. Mao Zedong finally sided with the extreme leftist faction of the
Chinese Communist Party, a faction led by his wife, Jiang Qing. The aging leader instituted the Cultural
Revolution to restore strict adherence by the people to Marxist-Leninist
principles. He called on the nation's
youth to be the vanguard of the revolution, and soon almost all Chinese young
people were organized into groups called the Red Guards that sought out
supposed class enemies and counterrevolutionaries. Those charged by the Red Guards with these crimes were endlessly
persecuted. Thousands were thrown into
jails for years, where they were physically and mentally tortured. Thousands of others died as a result of the
persecution or were killed outright by the Red Guards.
The
legal system was abolished. Jerome Alan
Cohen reports that during the height of the Cultural Revolution, "The
People's Daily published an editorial, 'In Praise of Lawlessness', that
condemned law as a bourgeois restraint upon the natural enthusiasm of the
revolutionary masses". (Cohen, 211)
In its place came rule by the mob.
Once an accusation of being a counterrevolutionary was leveled against
an individual, there was no defense or means of contesting the charge. Only through confession could one expect
some form of leniency.
By
1967, Mao Zedong realized that the Cultural Revolution had thrown the country
into chaos; but although he turned to the military to restore order, the fervor
behind the Cultural Revolution was so great that the persecutions and deaths
continued for another nine years.
Mao
Zedong died in 1976, and in the struggle for power that ensued, more moderate
factions of the CCP were victorious.
Jiang Qing and several of her colleagues -- who became known as the
infamous "Gang of Four" -- were arrested in the same year, and were
blamed by the Chinese people for much of the evil of the preceding decade. With the arrests of the Gang of Four, the
Great Proletarian Cultural Revolution that had brought so much chaos and
destruction to China finally came to a close.
The Aftermath of the Cultural Revolution and
Current Reforms
At
the close of the Cultural Revolution, China had no legal system; it only had an
elaborate and strong police agency for social control. Many members of China's present government,
including the current leader, Deng Xiaoping, suffered through the nightmare of
the Cultural Revolution. Some were even
casualties of the Anti-Rightist Campaign of the preceding decade. Consequently, the overwhelming majority of
China's current government favored immediate re-institution of the court system
and consideration of a new Constitution.
There was another motive for such actions. With the Cultural Revolution and the era of Mao Zedong in the
past, China is seeking to become a greater world power. To do this, the Chinese citizenry will have
to be motivated to modernize society.
Given past experiences with reactions to "new" ideas, the
people of China are understandably reluctant to venture into new areas:
So long as fear of arbitrary action persists ...
one cannot expect officials to take bold initia-
tives, scientists to innovate, teachers to
present new ideas, and workers to criticize
the bureaucracy. (Cohen, 209-210)
To combat this, the Chinese Communist Party is
trying to assure its citizens that certain fundamental rights will be
guaranteed to them.
A
new Constitution, adopted in 1978, was the first indication of this commitment
to legal reform. The Constitution
guaranteed all citizens the right to a legal defense and a public trial. A code of criminal law and procedure was
adopted two years later. These reforms
mandated, for example, that the accused be informed of the charges against him
at the time of his arrest and that police obtain warrants from judges for all
arrests. There is now a statute of
limitations for most crimes, and the legal profession has been re-instituted
(enrollment in Chinese law schools has soared).
China has been eager to display its commitment to reform to the rest of
the world. The greatest example of this
was the 1980-81 trial of the Gang of Four.
Although conviction of Jiang Qing and her colleagues was virtually
assured, the trial process was strictly adhered to and each defendant was given
ample time for defense. Parts of the
trial were broadcast on television and radio, and the proceedings were open to
the public. Chinese legal officials,
such as one of the judges from the trial, pointed out the merits of their new
system and the importance of the trial:
The
trial introduced several new features to Chinese
law. The legal procedures
established will be of
long-term significance. One
salient feature of this
major trial was the clear separation of what was
legally criminal from what was political.
(A
Great Trial in Chinese History, 1)
American observers have both criticized the
Chinese for "show over substance" and bestowed praise for adopting
features of western law into the Chinese legal system.
Experts on Chinese law caution, however, that China is not adopting the
western idea of an independent judiciary in its entirety -- the recently
introduced reforms to the legal system are limited and convenient for a Party
trying to project a certain image at the least cost to Marxist-Leninist
principles:
Politics will continue to take command in China,
and the legal system will continue to be regarded
as an instrument for suppressing the enemies of
the regime as well as protecting "the people".
(Cohen, 211-212)
Comparisons with Pre-communist China
The
role of judges and the purpose of the law in present day China have some roots
in traditional Chinese views on these subjects. Rulers through the centuries in
the various dynasties in China prior to 1911 were expected to be benevolent
rulers who led more by moral example than by application of laws. "Self-examinations" and
"persuasion-education" sessions today in China are extenuations of
the idea that social control through reinforcement of a moral ideal is
perferable to social control through punitive laws. In addition, the ultimate Marxist goal of the withering away of
the state and law is consistent with the traditional Chinese disdain for the
"rule of law".
The
Confucian heritage taught that just as the people had duties to their rulers,
the rulers had obligations and responsibilities to those they ruled. Communist China took that relationship one
giant step further: there ideally
should be no distinction between rulers and ruled. The "dictatorship of the proletariat" claims to
prohibit the formation of any class of legal specialists who have a monopoly of
knowledge about how justice is administered.
Instead, positions in the courts and legal system should be filled by
representatives of "the people".
In this way, the interests of the state and the interests of the people
will be synonymous -- an extreme variation on the Confucian teaching of
reciprocal duties between the state and the masses.
There are also similarities between criminal procedures in imperial China
and communist China. Long detentions of
prisoners in a poor environment and the emphasis on confessions of the accused
are evident in both time periods. The
absence of lawyers, of protection against self-incrimination, and of a defense
(even by the accused himself) continued to be features of the PRC's legal
system at different times after 1949.
The presumption of guilt, only recently coming under scrutiny in China,
was also very apparent in imperial China.
The West vs. China: Ideas of Justice
The fundamental difference between the
administration of justice in China and that in the West is the position of the
legal system: is it independent or allied with the state?
Americans would be strongly opposed to a non-independent judiciary. How could such a system protect the
individual from society, from the state?
How could such a system remain unprejudiced?
The
communist Chinese would be equally as opposed to an independent judiciary. Such a system would inevitably become
exclusive, with specialists and class-related interests. It would become, in the words of the
People's Daily, just another "bourgeois restraint on the natural
enthusiasm of the revolutionary masses" (Cohen 211). Accordingly, the judiciary in China is under
the direct control of the National People's Congress, China's highest
legislative body, which is in turn controlled by the CCP. Moreover, the judiciary, like any other
branch of government, is an agent in the continuing communist revolution. It cannot be neutral in the struggle against
enemies of the communist state. An
independent judiciary would be an impediment in that struggle.
In
communist ideology (much like in a democracy), the state is the people. The interests of the state are the interests
of the people, and of each individual person.
Therefore, if someone is charged with a crime, he should confess and
pursue reform, because the state apparatus that prosecuted him has his
interests in mind. Unlike in the West,
there is no adversarial stance between the prosecution and the accused.
In
China, the protection of society takes precedence over the protection of the
individual. The western legal system
puts great emphasis on preventing conviction of the innocent, even if that
means letting some possibly guilty defendants go free. To the Chinese, the net benefit to society
is much greater if every probable criminal is caught and punished (or
reformed), even if that means some innocent citizens will be wrongly
convicted. Consequently, in China there
is no presumption of innocence. All
accused persons are presumed guilty unless proven otherwise. Unlike in America, where the burden is on
the prosecution to prove the charges, the burden in China is on the defendant
to disprove the charges. The dominant
attitude is that a person would not have been prosecuted if he were not guilty.
*
* * *
The following selections constitute primary and
secondary sources on the administration of justice in the People's Republic of
China. I have tried to include a
primary source from each time period, and they are arranged
chronologically. The secondary sources
are simply arranged alphabetically.
*
* * *
Bibliography and Works Cited for Introduction
Cohen, Jerome Alan. "Has Justice a Fairer Future in China?" 1979. Emerging China. Ed. Thomas Draper. New
York: The H.W. Wilson Company, 1980.
A Great Trial in Chinese History Beijing, China: New World Press, 1981.
Li, Victor H.
Law without Lawyers. Boulder,
Colorado: Westview Press, 1978.
Luk, Simon.
"China's New Legal System."
World Press Review. 27 (May 1980): 59.
** PRIMARY SOURCES **
---------------------------------------------------------------
1.
From: "Neither Too Young or
Too Old." Time. LVII (March 19,
1951): 38.
Liberal folklore regarded Chinese Communists as humanitarians who would
rather re-educate criminals than punish them.
Reports of purges inside China under the new Red penal code have brushed
away most vestiges of this belief. Shih
Liang, Red China's woman Minister of Justice, in recent instructions to her
courts finally laid it to rest.
Chinese Communist courts, according to Minister Shih, have been too soft
on anti-Communists. Punishment must now
be meted out quickly and heavily. Under
her new codes, courts may order a prisoner shot for his "intentions"
-- which the courts must judge at their discretion. They can punish "counter- revolutionaries" who are
merely "waiting for a chance to commit a crime." The new penalties may be retroactive, Madame
Shih continued. Verdicts "should
conform to prevailing policy."
In
the past, said Madame Shih, Communist courts have released prisoners for
varying reasons. Among them: "he was too young or too old," or
"in the class composition he was a middle peasant," or "there
was nothing much against him."
This sort of thing, said the Minister of Justice, must stop.
COMMENTARY:
The primary function of the communist Chinese justice system -- in any
of its forms over the years -- has always been social control (as opposed to
conflict resolution or protection of individual rights). This article, from the early years of the
PRC, supports that assertion. It is
also an example of the anti-specialist campaign of the new legal cadres between
1951-52 (see Introduction). The
comments cited in the last paragraph show how the goal of successfully
prosecuting all "counterrevolutionaries" superceded the risk that some innocent citizens may be convicted
in the process. Those comments also
seem to indicate that what we Americans would regard as justifiable compassion
was too high a risk to take with the control of society.
----------------------------------------------------------------
2.
From: Cohen, Jerome Alan. The Criminal Process in the
People's Republic of China:
1949-1963.
Cambridge, Massachusetts:
Harvard University Press,
1968 (p. 191).
The following is a letter to the editor of the
People's Daily (China's largest newspaper and the voice of the Chinese
Communist Party -- "CCP") from July 18, 1956:
Comrade Editor:
I am
a soldier on active duty. I now want to
make an accusation to you about the unlawful conduct of Hu Ching-chou, an
officer of the public security department of Chekiang province, who undermined
the marriage of a revolutionary soldier.
In
October 1954 my wife, Tuan Cheng, was transferred from her job in the armed
forces to work in the public relations office of the city of Shen-yang. At that time Hu Ching-chou, who was a cadre*
in the International Travel Agency in Peking, was also transferred to the same
office. During the time that the two
worked together, although Hu clearly knew that my wife was married, he
nevertheless illicitly fell in "love" with her. Later Hu was transferred to the public
security department of Chekiang province, but he still continued to write
letters to my wife. In October 1955,
even more shamelessly than ever, he proposed a love affair to my wife. In November I completed my studies at a
military school, was assigned to work in Shen-yang, and discovered their
illicit relationship. I reported the
matter to the organization, and through the organization they were separately
given persuasion-education. According
to reason, Hu Ching-chou should have thoroughly reformed and severed his
relations with my wife. Yet, on the
contrary, he intensified his advances toward my wife and even tried to coerce
her to divorce me. Even more
intolerable was the fact that on the Chinese New Year of 1956, after I had
returned from the public relations office to my military unit, Hu Ching-chou
took a plane from hangchow to Shen-yang and lived with my wife in a hotel for
two days. It was only when the orgnaizaiton discovered them on the third day
that he was compelled to return to Chekiang. After this the Party organization
within the public relations office undertook to educate and deal with my wife
(she was a member of the Communist Party.) She also had to make a
self-examination before a meeting of all the members of the [Party] branch, and
she indicated that she was determined to improve relations with me.
Nevertheless, Hu Ching-chou continued his involvement with her and would not
let her alone. He secretly incited her to divorce me.
Hu
Ching-chou is a cadre of a state organ.
Yet he knowingly broke the law.
He should be punitively restrained by law.
Hsu Yuan-i
*A cadre is a civil service worker who has been
especially trained to strictly adhere to Chinese Communist Party policies,
rather than just being trained for a particular job. Although all PRC citizens are taught Marxist-Leninist principles
and the teachings of Mao Zedong, cadres are charged with the specific task of
seeing that those teachings are implemented in all areas of society. They are the ideological watchdogs of the
Party, and they are expected to be examples to the community of the good
citizenship. This is probably why the
author of the letter emphasized that Hu Ching-chou was a cadre.
COMMENTARY:
The "organization" mentioned in the middle of the main
paragraph is the local branch of the Chinese Communist Party. The injured party did not take the other
party to court; instead he took his grievance to local party officials, as the
Party was the agency responsible for punishing or "reforming"
wrongdoers. Notice that it is the party
organization within the workplace (the public relations office) that handles
the punishment of the man's wife; the matter never leaves the workplace or
enters a court. It would seem from this
case that because methods of re-education or "persuasion" did not
correct the matter, the author of the letter is requesting that stronger
actions be taken: "He should be
punitively restrained by law."
This dissatisfaction with the "reformation" system and the
belief that justice could perhaps only be obtained from the application of a
penal code (resorting to the "rule of law") was not only being felt
by the letter's author; the Chinese leadership at that time was in the process
of forming its first criminal code and was re-establishing a judicial system as
we know it (however, this movement was cut short by the Anti-Rightist Movement
of 1957-58).
----------------------------------------------------------------
3. Also
from The Criminal Process in the People's Republic of
China: 1949-1963 (p. 215)
The following account is compiled from the
author's interviews with those involved in the case and others who had
knowledge of the incident:
On
October 1, 1959, P'eng, a student of an upper middle school, tried to leave one
of the great mass rallies that was held to celebrate the tenth anniversary of
the founding of the People's Republic.
Two public security cadres in plain clothes who were stationed at the
exit refused to let him leave, and an argument developed. When the cadres revealed that they were
public security men, P'eng became angry and still refused to listen to
them. They took him to the nearest
public security station, where the station secretary talked with the cadres,
interviewed P'eng, and told him to write out a statement of the facts. The secretary then filled out a form that
summarized the facts of the case and his recommendation for disposing of
it. While P'eng waited at the public
security station, a policeman took this form and P'eng's statement to the
public security bureau.
The
secretary of the bureau's security section quickly studied these documents and,
after consulting the bureau chief, decided that P'eng's conduct had violated
Article 5(4) of the SAPA [Security Administration Punishment Act]* and that he
should receive three days of detention plus criticism upon his return to school. The secretary of the security section then
made out a detention warrant and gave it to the waiting policeman, who returned
to the public security station with it. There P'eng was informed of the
bureau's decision. He was told that he
could give his "opinion" of this disposition and that it would be
sent to the bureau for consideration, but he declined to do so.
Upon
P'eng's release from detention the public security station notified his school
to hold a large-scale criticism meeting.
P'eng was required to make a self-examination in front of the whole
student body and, after receiving the censure of his fellow students, to
guarantee that he would not behave in the same way again. After the meeting his statement of
self-examination and guarantee was posted at a prominent place in the school.
*[SAPA (Oct. 22, 1957)]
Article 5. A person who commits
any one of the following acts disrupting public order shall be punished by
detention of not more than ten days, a fine of not more than twenty yuan, or a
warning:
. . .
(4)
Refusing [to cooperate with] or obstructing state security administration
personnel who are performing their duties according to law . . .
COMMENTARY:
After the Anti-Rightist Movement of 1957-58 reversed a good deal of the
progress made toward the construction of a semi-independent judiciary and a
criminal code, the police and security agencies took on much of the duties of
the judiciary. This case is an example
of that change. The student P'eng never
enters a courtroom or meets a judicial official; his case is reviewed and
decided by a single security agency secretary.
The method of punishment was self-examination and exposure to criticism
from peers -- both designed to shame the accused into reforming his
behavior. It is the idea of deterrence
through humiliation, rather than deterrence through fear. It should be noted that the accused does
have input into the process in two places:
when he is asked to give his version of what took place, and when he is
given the chance to protest the security official's decision. We may question what effect these two
options have, if any, on such a case; but it may be significant that the
accused has any say in the matter whatsoever.
----------------------------------------------------------------
4. From:
Life and Death in Shanghai by Nien Cheng, as excerpted in Time, 129
(June 8, 1987): 47-48.
Nien Cheng, author of the memoir Life and Death
in Shanghai, spent six and a half years in prison and under torture during the
Cultural Revolution. As a special
advisor to the manager of the Shell oil company prior to 1966 (Shell was the
only U.S. company to stay in China after the Communist revolution), Nien Cheng
enjoyed a very comfortable lifestyle, and, hence, was a prime target of the Red
Guards when they began their persecution of those suspected of being enemies of
the state. After weeks of persecution
by the Red Guards (including the destruction of much of her home), she was
placed under "house arrest" by the guards. Soon after, she was taken from her home to another location:
I
was the object of [a] "struggle" meeting, attended not only by the
Red Guards and the Revolutionaries who had come to my house but also by the
former staff of Shell. The man with the
tinted spectacles was in charge.
He
was quite a fluent speaker. . . He turned to my family background, telling the
audience that I was the descendant of a big landlord family, that my father was
a senior official of the pre-Kuomintang government. He said that I went to England and was trained by the British to
be "a faithful running dog" in one of their universities. . .
Throughout his speech, the audience shouted slogans; a number accused me of
being a "spy".
Former employees of Shell were called upon to give evidence against
me. I could see how frightened they all
were, and I wondered what they must have gone through. The men who got up to speak were white, and
their hands holding the prepared statements shook. None looked in my direction.
The man with the tinted spectacles said,
"You have listened to the mountain of evidence against you. Your crime against the Chinese people is
extremely serious. You can only be
reformed by giving a full confession telling us how you conspired with the British
imperialists in their scheme to undermine the People's Government. Are you going to confess?"
"I have never done anything against the Chinese people and
government. The Shell office was here
because the Chinese government wanted it to be here."
Everything I said was drowned by angry shouts and screams of
"Confess! Confess!" and "We will not allow a class enemy to
argue!" The Red Guards and Revolutionaries
crowded around me, shook their fists in my face, pulled at my clothes and spat
on my jacket while yelling. "Dirty
spy!" . . . "We will kill you!"
They pushed me very hard.
When the noise died down a little, the man in spectacles said, "Our
patience is exhausted. You are
guilty. We could give you the death
penalty. But we want to give you a
chance to reform youself. Are you going
to confess?"
Everybody stared at me expectantly.
I said nothing.
The
man beckoned to a youth at the back of the mob, who came forward with a pair of
shiny metal handcuffs, then asked, "Are you going to confess?"
I
answered in a calm voice, "I've never done anything against the People's
Government. I have no connection with
any foreign government."
. .
.
The
young man from the police pulled my arms behind my back and put the handcuffs
on my wrists. Then we got into the Jeep
and drove off into the dark streets.
COMMENTARY:
It is startingly apparent in this frightening account of the Cultural
Revolution that the legal system had been abolished in favor of mob
justice. The Red Guards were often
teenagers with no experience in government or law and with no centralized
leadership. They were given a broad
mandate from Chairman Mao to seek out and punish those individuals who were
working against the attainment of the ideal communist state. Who they would focus on next, when they
would turn on that person, and what form the punishment would take was unknown
and arbitrary. There was no defense for
the accused -- guilt was presumed and confession was the only means to lessen
the punishment. The was no method of
redress; the fate of the accused lay solely in the hands of the Red Guards and
their followers. Although China had
technically reached the Marxist goal of the withering away of law, the result
was chaos, not social stability.
----------------------------------------------------------------
5. From:
The Constitution of the People's Republic of China. (Adopted on March 5, 1978
by the Fifth National People's Congree of the People's Republic of China at its First Session). Peking:
Foreign Language Press, 1978.
Also, excerpts from the Organic Law of the People's Courts and the Law
of Criminal Procedure (both promulgated in 1980) as found in A Great Trial in
Chinese History. Beijing, China: New World Press, 1981.
===> from The Constitution
ARTICLE 41
The
Supreme People's Court, local people's courts at various levels and special
people's courts exercise judicial authority.
The people's courts are formed as prescribed by law.
. .
.
All
cases in the people's courts are heard in public except those involving special
circumstances as prescribed by law. The
accused has the right to defense.
ARTICLE 42
The
Supreme People's Court is the highest judicial organ.
The
Supreme People's Court supervises the administration of justice by local
people's courts at various levels and by special people's courts; people's
courts at the higher levels supervise the administration of justice by people's
courts at the lower levels.
The
Supreme People's Court is responsible and accountable to the National People's
Congress and its Standing Committee.
Local people's courts at various levels are responsible and accountable
to local people's congresses at the corresponding levels.
===> from the Organic Law of the People's
Courts
A ARTICLE 4
The
People's Courts administer justice independently, subject only to the law.
===> from the Law of Criminal Procedure
A
ARTICLE 8
Stress should be laid on evidence, investigation and studies, and one
should not be too ready to believe the confession of an accused. No accused shall be adjudged guilty and
sentenced without evidence other than his confession; he shall be convicted and
punished if there is sufficient evidence against him even without his
confession.
COMMENTARY:
Listed above are some of the more important aspects of the new Chinese
legal system. While the Constitution
stipulates that the Supreme People's Court is responsible to the National
People's Congress, the Organic Law of the People's Courts (adopted two years
later) states that the courts below the Supreme People's Court "administer
justice independently". The
contradiction leads to the question, "what does it mean to administer
justice independently in China?"
Other aspects of the laws worth noting are the provision for a defense
and the stipulation that convictions may not be made solely on the basis of a
confession -- both of which are departures from the Chinese legal heritage.
----------------------------------------------------------------
6.
From: "A Leader's Rise, A
Widow's Fall". Time 117 (January
12, 1981):27-8.
An excerpt from Time's coverage of the final
days of the Gang of Four trial, particularly the trial of Mao's widow, Jiang
Qing:
A
special team of prosecutors accused her of a multitude of crimes. Among other offenses, they charged, she had
slandered Vice Chairman Deng, incited Red Guards to persecute her enemies in
the Cultural Revolution and ordered bands of hired thugs to ransack the homes
of former colleagues. . .
In
a final presentation of evidence, the prosecutors flashed grisly pictures of
the bruised corpse of former Coal Minister Zhang Linzhi on a large screen in
the courtroom and called two witnesses to testify that Jiang Qing had ordered
Red Guards to deal with him as a couterrevolutionary. Then, in the "debate" portion of the trial, which allows
a modicum of defense, Prosecutor Jiang Wen demanded that Mme. Mao be punished
in accordance with Article 103 of China's criminal code. It allows the death penalty in cases where
"serious harm" has been done to the state.
Speaking for herself (she had refused an attorney), Jiang Qing gave a
long and rambling two-hour defense of the Cultural Revolution . . .
Many
Chinese, particularly those who suffered during the Cultural Revolution,
remained totally unmoved by Jiang Qing's defense. . . [Some] grumbled that the
case was a classic show trial whose purpose was only to give an appearance of
legality to the vengeful elimination of the once powerful radical faction. "There's not much sympathy for Jiang
Qing," said one writer, "but to have done things really fairly, the
whole Central Committee would have had to go on trial, since it approved of the
Cultural Revolution."
COMMENTARY:
I have included this selection solely for the purpose of comparison with
the excerpt from Nien Cheng's Life and Death in Shanghai. It is important to note the stark differences
between the trial of Jiang Qing in 1981 and the "trial" of Nien Cheng
during the Cultural Revolution. Both
Jiang Qing and Nien Cheng were charged with crimes against the state; but in
the span of less than fifteen years the PRC moved from indictments and
prosecution by mobs of Red Guards to the elaborate, western-like courtroom
procedure glimpsed in the article above (whether it was for "show" or
genuine is not very relevant to the comparison). The difference highlights the fact that the Chinese were so
scarred by the Cultural Revolution that change in the legal system was swift in
coming.
---------------------------------------------------------------
7. A
Great Trial in Chinese History.
Beijing, China: New World Press, 1981.
EXCERPT:
"As a member of the panel of judges I know that from the very start
of the proceedings [of the trial of the Gang of Four] it was particularly
stressed that facts were the basis and the law was the sole criterion. This is a set principle not to be affected
by feelings on other factors . . . The trial provided the people of the country
with a lesson, vivid and profound, on the rule of law . . . It must be remarked
that these perpetrators of crimes in the end were given a just trial and were
justly adjudged by history. Some
writers abroad have compared the trial to those held in Nuremberg and Tokyo
after the Second World War. This is
rather appropriate in my view." (pp. 7-9)
COMMENTARY:
A Great Trial is the official PRC publication on the 1980-81 trial of
the Gang of Four. A preface by one of
the judges from the trial sets the self-congratulatory tone of the entire
book. In A Great Trial the government
of China details for the rest of the world how legal procedure was adhered to
in the trial and how the defendants were given their rights as provided for in
the most recent laws. The book is a
sampling of transcripts from the trial, summaries of the proceedings by the
editors, interviews with the jurists, articles from the People's Daily during
the time of the trial, and official documents relevant to the trial, including
the final judgement. Although it is
regarded as a highly partisan work, A Great Trial is valuable for showing the
intentions of the PRC leadership in the Gang of Four trial.
8.
From: "Effective
Warnings". Time 123 (January 30,
1987): 24.
(Under photographs of men, whose hands are
bound, either shot or about to be shot by figures in military garb.)
The 18,000 spectators in Peking's Capital
Stadium hissed and strained their necks as officials tried about a dozen
prisoners accused of murder, rape and thievery, then summarily condemned them
to death. Less than an hour later, in a field on the city's outskirts, a police
firing squad swiftly carried out the sentences.
Last
week's mass trial and its grisly aftermath were only the latest in a nationwide
crackdown on crime that has resulted in 100,000 arrests and some 5,000
executions since August. The campaign reflects fears that China's traditionally
placid society is threatened by an outbreak of violence, signaled by an upsurge
in muggings and sexual assaults.
Most
Chinese seem to welcome the government's harsh response. "We must execute
one as a warning to a hundred," editorialized one Canton newspaper, the
Yancheng Evening News. To make sure there is no misunderstanding about its
intentions, the government has been posting photos of executions, like the ones
above, throughout the country. The warning seems to be having a chilling
effect: criminal cases during September and October dropped by 42% compared
with the same period in 1982.
COMMENTARY:
This particular primary source has been included to balance out those
sources above that would lead one to believe China has made drastic changes in
its view of the role of the justice system.
If the Chinese government viewed the court system as an instrument for
the prosecution and re-education of criminals, many of those executed at the
mass trials may have instead been sent to prison for a time and to some sort of
state re-education agency. That they
were all executed less than an hour after their trials seems to indicate that
the primary function of the judicial system of China is still to achieve
Communist Party goals -- in this case, the deterrence of more crime. The article does not report whether those
accused in these mass trials were provided with a defense attorney, as is now
the law in China. It is fitting that
this last sample of primary evidence from China gives support to Jerome Alan
Cohen's warning that "Politics will continue to take command in
China." (p. 211-212)
** SECONDARY SOURCES **
1.
Bonavia, David. Verdict in
Peking: The Trial of the Gang of
Four. New York: G.P. Putnam's Sons,
1984.
EXCERPT:
"The trial of the Gang of Four was, in brief, a classic showpiece
of what totalitarian regimes regard as justice for their political
enemies." (p.202)
The purpose of this book, states its author, is
"to supply an intimate view of how the modern Chinese political system
works, especially at times of strain and conflict." (Bonavia, 11) Using transcripts from the limited
television broadcasts of the trial of the Gang of Four, and accounts from
Chinese citizens who saw parts of the trial, Mr. Bonavia reconstructs the
details of the trial and supplements the account with background material and
commentary. In the last chapter of the
book, the author examines whether the trial of the Gang of Four was a
"just" trial and whether the trial really did demonstrate the new
features of the Chinese justice system.
As stated above, Mr. Bonavia concludes that, although the trial was not
completely staged, the defendants were allowed ample time for rebuttals, and
the court adhered strictly to its newly outlined procedures, the result was
still little more than a show trial -- designed to show the Chinese citizenry
and the world the new legal system yet still effectivel
2.
Cohen, Jerome Alan. The Criminal
Process in the People's Republic of China:
1949-1963. Cambridge, Massachusetts: Harvard University Press, 1968.
This is the book on Chinese criminal law prior
to the Cultural Revolution. The first
section of the book is a detailed history of the development of criminal law
and procedure in the PRC. The second
section, which constitutes the bulk of the work, is a compilation of speeches
by PRC officials, official PRC documents, and accounts of legal proceedings
based on interviews with Chinese citizens or people who have visited
China. This very detailed section is
supplemented by Mr. Cohen's discussion of the issues raised in each
selection. The third section is a
glossary of Chinese legal terms and their approximate English equivalents. The book is an invaluable source of primary
resources for the study of justice in China.
Jianfan, Wu.
"Building New China's Legal System." China's Legal Development. Ed. John R. Oldham. Armonk, New York: M.E. Sharpe, Inc., 1983.
EXCERPT:
"We believe. . .that society does not take law as its base. On the contrary, law takes society (or, more
precisely, social relations of production) as its base. Law does not create society; society creates
law. Only when the law corresponds to
the social relations of production does it have legitimacy." (p. 4)
This recent essay, written by an official of the
Chinese Academy of Social Sciences, is both a primary and secondary source on
the administration of justice in China since 1949. Because it is written by a Chinese official and not a foreign
observer, it is an excellent source for determining just what the Chinese view
as the purpose of law and legal systems.
Mr. Jianfan surveys the development of his nation's legal system from
1949 until the 1980's, pointing out where mistakes were made and where
beneficial steps were taken; and he offers suggestions for, and a prediction
about, the legal system in the future.
Along the way, he reflects on the purposes of law in China and in the
West. The author includes quotes from
other Chinese officials (including Mao Zedong) at different points in the
history of the PRC, when discussions were taking place to construct (or
abolish, as the case may have been) a legal system. As a secondary source, the essay offers extensive criticism of
each phase of the development of the Chinese legal system.
4. Li,
Victor H. Law without Lawyers. Boulder, Colorado: Westview Press, 1978.
EXCERPT:
". . . The American system stresses individuality, privacy,
diversity, and support for individual action.
Chinese society appreciates the importance of the individual but places
greater emphasis on how he or she functions within the context of a larger
group. Traditionally, a person's
livelihood in China was intimately linked to the economic activities of his
family and village. His spiritual
existence was dependent on the continuity of family and clan ties. That an individual should act through the
group, at times subordinate his own interests to the interests of the group,
and derive satisfaction from seeing benefits accrue to the group were commonly
accepted ideas. Thus, the present-day
emphasis on group action and group decision making is readily understandable
and indeed may feel more 'natural' to people living in a Chinese cultural
milieu." (p. 95)
Subtitled "A Comparative View of Law in
China and the United States", Law without Lawyers looks at the fundamental
differences between the American and Chinese legal systems, and the historical
and cultural foundations of those differences.
The Chinese disdain for the "rule of law" and the American
affinity for the same are examined, as well as the development of the opposing
emphases on the individual (America) and the group (China). Primarily concerned with underlying causes
of differences rather than the actual differences, the book only uses a few
sources of primary evidence.