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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
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