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China

The Legal System under the 1975 State Constitution

The state constitution adopted in January 1975 overwhelmingly drew its inspiration from Mao Zedong Thought. It stressed party leadership and reduced the power of the National People's Congress. The streamlined document (30 articles compared with 106 in 1954) reduced even further the constitutional restraints on the Maoists. The sole article in the new state constitution that pertained to judicial authority eliminated the procuratorate and transferred its functions and powers to the police. The marked increase in police power suited the radical leaders in the party hierarchy who wanted public security forces to have the power to arrest without having to go through other judicial organs.

The National People's Congress theoretically was still empowered to enact laws, select and reject state officials, and direct the judiciary. The party, however, was the ultimate arbiter, and the Supreme People's Court was no longer designated the highest judicial body in the land but was only mentioned in passing as one of the courts exercising judicial authority.

Equality before the law, a provision of the 1954 state constitution, was eliminated. Moreover, people no longer had the right to engage in scientific research or literary or artistic creation nor the freedom to change residences. Some new rights were added, including the freedom to propagate atheism and to practice religion. Citizens also gained the "four big rights": the right to speak out freely, air views fully, hold great debates, and write big-character posters (see Glossary). These "new" forms of socialist revolution along with the right to strike were examples of radical political activism popularized during the Cultural Revolution that were revoked in 1979 (see The Government , ch. 10).

"Socialist legality" under the 1975 state constitution was characterized by instant, arbitrary arrest. Impromptu trials were conducted either by a police officer on the spot, by a revolutionary committee (the local government body established during the Cultural Revolution decade), or by a mob. Spur-of-the- moment circulars and party regulations continued to take the place of a code of criminal law or judicial procedure. For example, during demonstrations in Beijing's Tiananmen Square in early 1976, three demonstrators were seized by police and accused of being counterrevolutionaries in support of Deng Xiaoping. The three were "tried" by the "masses" during a two-hour "struggle meeting," a session where thousands of onlookers shouted their accusations. After this "trial," during which the accused were forbidden to offer a defense (even if they had wished to), the three were sentenced to an unspecified number of years in a labor camp. In contrast to the milder sentences of the 1957 period, sentencing under the state constitution of 1975 was severe. Death sentences were handed down frequently for "creating mass panic," burglary, rape, and looting.

Following the death of Mao in September 1976 and the arrest of the Gang of Four (see Glossary) less than a month later, the government took its first steps to set aside the 1975 state constitution and restore the pre-Cultural Revolution legal system. In January 1977 Premier Hua Guofeng directed legal experts to begin rebuilding judicial institutions in the spirit of the 1954 state constitution. The Chinese press began to carry stories about the virtues of the 1954 document and the Gang of Four's abuse of it. Later in the year, Hua announced that China had eight important tasks to fulfill, among them the reconstruction of formal legal institutions.

During the fall of 1977, the People's Liberation Army (PLA) and militia began turning over the responsibility for public security to the civilian sector. Judicial and public security workers held meetings to seek ways "to strengthen the building of the legal forces . . . and socialist legal systems." A theoretical study group from the Supreme People's Court affirmed that the courts and the public security organs were solely responsible for maintaining public order, and they called on the people to accept the views of superior authorities.

The government set out to reorganize completely all judicial procedures and establish codes of criminal law and judicial procedure as quickly as possible. Law schools were reopened, professors were rehired to staff them, and legal books and journals reappeared. By the end of 1977, the legal system and the courts reportedly were stronger than at any time since the 1954-56 period.

Data as of July 1987


China - TABLE OF CONTENTS

  • China - Party and Government

  • China - The Political Process

  • China - Foreign Relations

  • China - Criminal Justice and Public Security

  • China - National Defense


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