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China The Legal System under the 1954 State Constitution
The state constitution promulgated in September 1954 attempted
to set down in legal form the central tasks of the country in the
transition period of the mid-1950s and to regulate China's strides
toward socialism. The state constitution provided the framework of
a legal system much like that in effect in the Soviet Union from
1921 to 1928. Much of the Soviet legal code was translated into
Chinese, and Soviet legal experts helped rewrite it to suit Chinese
conditions.
The 1954 state constitution gave the Standing Committee of the
National People's Congress the power to appoint and dismiss
judicial personnel and to enact legal codes. The state constitution
protected individuals from arrest and detention unless approved by
the people's procuratorates, and it granted citizens freedom of
speech, correspondence, demonstration, and religious belief.
Citizens could vote and could run for election. They also acquired
the right to an education, work, rest, material assistance in old
age, and the ability to lodge complaints with state agencies. Each
citizen was granted the right to a public trial and to offer a
defense aided by a "people's lawyer." Citizens were granted
equality before the law, and women were guaranteed equal legal
rights. Under the 1954 state constitution, local procuratorates
that had been responsible both to the procuratorate at the next
higher level and to the government at the corresponding level were
responsible only to the procuratorate at the next higher level.
Technically, the judiciary became independent, and the Supreme
People's Court became the highest judicial organ of the state.
Additionally, a law codification commission was set up to draft
the first criminal code of the People's Republic and to describe
criminal liability in detail. A set of rules for the proper conduct
for police and judicial personnel was established, and it became
the "political task" of the courts to determine what was or was not
an offense. A criminal law, a code of criminal procedure, and a
civil code were drafted, but none of these were enacted until
twenty-five years later.
To cope with the anticipated need for more lawyers, law schools
expanded and revamped their curricula. A large quantity of legal
books and journals reappeared for use by law students. Although all
lawyers were supposed to be conversant in the current ideology,
many developed into "legal specialists" with more concern for the
law then for ideology. Although this viewpoint would be condemned
in 1957 when the Soviet-style legal system was rejected, in 1954 it
appeared that China had taken a first step toward an orderly
administration of justice.
Between 1954 and 1957, much effort was expended to make the
legal system work, but the underlying conflict between the
specialists and the cadres, who were more concerned about ideology
than the legal system, remained. By 1956 the situation had
polarized. The specialists argued that the period of intense class
struggle was over and that all people should now be considered
equal before the law and the state constitution. The cadres, on the
other hand, contended that class struggle would never end and that
separate standards should be applied to class enemies. They saw the
specialists as obstructing the revolution--trying to subvert the
new state and restore the rights of old class enemies.
In 1956 Mao personally launched a mass movement under the
classical slogan "Let a hundred flowers bloom, let the hundred
schools of thought contend"
(see The Transition to Socialism, 1953- 57
, ch. 1;
Policy Toward Intellectuals
, ch. 4). His essay "On the
Correct Handling of Contradictions among the People," published in
early 1957, encouraged people to vent their criticisms as long as
they were "constructive" ("among the people") rather than "hateful
and destructive" ("between the enemy and ourselves"). Mao was
anxious to defuse the potential for a backlash against communist
rule such as had occurred in Hungary and Poland.
The legal specialists were among the most vociferous critics of
party and government policies. They complained that there were too
few laws and that the National People's Congress was slow in
enacting laws already drafted. They felt that legal institutions
were maturing too slowly and that the poorly qualified cadres were
obstructing the work of these institutions to suit their own
political ends. The legal experts also spoke out against those,
especially party members, who thought themselves above the law.
By August 1957 the criticisms of party and state policies were
too broad and penetrating to be ignored. Mao and his supporters
labeled the critics "rightists" and launched a campaign against
them. Among the first victims of the Anti-Rightist Campaign were
the specialists and their legal system. Mao objected to this system
for several reasons--among them, his views that the Soviet model
was too Westernized for China and that the judicial system was too
constraining.
The specialists' proposals for a judiciary free from party and
political interference were denounced and ridiculed. Mao did not
want a judiciary that stood as an impartial arbiter between the
party and anyone else. The principle of presumption of innocence
was spurned, as was the notion that the law always should act "in
the interest of the state and the people" rather than the party.
Many specialists were transferred to nonjudicial jobs and
replaced by party cadres. All codification commissions stopped
work, and no new laws were drafted. The number of law schools
dropped sharply as most universities shifted their curriculum to
more politically acceptable subjects. Later, during the
Cultural Revolution
(1966-76; see Glossary),
almost all the remaining law schools were closed.
With the Anti-Rightist Campaign of mid-1957 and the
Great Leap Forward
(1958-60; see Glossary),
a new mass line emerged. The Anti-Rightist Campaign halted the trend
toward legal professionalism,
which was seen as a threat to party control. The party leadership
resolutely declared its power absolute in legal matters. The Great
Leap Forward sought to rekindle revolutionary spirit among the
people. The mass line, as it affected public order, advocated
turning an increasing amount of control and judicial authority over
to the masses. This meant greater involvement and authority for the
neighborhood committees and grass-roots mass organizations.
The Anti-Rightist Campaign put an end to efforts that would
have brought about some degree of judicial autonomy and safeguards
for the accused, and the country moved toward police domination. By
1958 the police were empowered to impose sanctions as they saw fit.
The party gave low priority to the courts, and, as many judicial
functions were turned over to local administrative officials, few
qualified people chose to stay with the still-operating courts. The
number of public trials decreased, and by the early 1960s the court
system had become mostly inactive. One unexpected by-product of the
shift from formal legal organs to local administrative control was
that criminal sentences became milder. Persons found guilty of
grand theft, rape, or manslaughter were sentenced to only three to
five years' imprisonment, and the death penalty rarely was imposed.
During the Great Leap Forward, the number of arrests,
prosecutions, and convictions increased as the police dispensed
justice "on the spot" for even minor offenses. Still, the excesses
of the Great Leap Forward were milder than those of the 1949-52
period, when many of those arrested were summarily executed.
Persons found guilty during the Great Leap Forward were regarded as
educable. After 1960, during a brief period of ascendancy of the
political moderates, there was some emphasis on rebuilding the
judicial sector, but the Cultural Revolution nullified most of the
progress that had been made under the 1954 state constitution.
Data as of July 1987
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