Communist China's First Decade-II. Justice and the Law
HSIA, TAO-TIA
Communist China's First Decade — 11 JUSTICE AND THE LAW By Tao-tai Hsia THE MARXIST-LENINIST concept of "class justice" is fully concurred in by Chinese Communist chief Mao Tse-tung. He...
...Nanking and other big cities...
...Peter S. H. Tang on The Party Leadership...
...Su Lui stated that if a person entrusts his attorney with his secret the attorney is obligated to persuade his client to inform the investigating organ or the court...
...rights were violated, basic rules of evidence ignored and excessively severe punishments inflicted on "undesirable elements" and on persons with "impure backgrounds" (people of bourgeois origins...
...They pointed out that there were "no basic laws for the people to rely upon...
...4) Those who refuse to accept specific job assignments and those who refuse to be transferred or relocated...
...Clearly, Party leadership would thus be nullified...
...the Trial Committee of the Supreme People's Court compiled two summaries of current civil and criminal procedures...
...Under Article 70 of the Communist Chinese Constitution, the accused is guaranteed the right to be defended by counsel...
...president of the people's court in Ping-ting-shan fa newly industrialized town), reported in a legal periodical that in March 1958, a joint conference on the Great Leap Forward was convened by Ping-tingshan's public security organs and court...
...At present, the People's Republic does not have a comprehensive code for civil or criminal law or for legal procedure...
...He further explained that laws should be gradually made to meet the "objective demand of political and economic development...
...uphold discipline at work, keep public order and respect social ethics," is cited as a legal basis for this decree...
...Peking has a vast army of political crime-hunters...
...In discussing the way to deal with reactionaries, he said that if they desisted from counter-revolutionary activities, their lives would be spared and they would be given work to reform themselves through labor...
...Since this State Council decree contains a specific provision directed at these expellees, it is not difficult to guess the whereabouts of these young scholars today...
...In 1956 and the first half of 1957, student unrest was prevalent at universities in Peking...
...If one considers such cases from the point of view of ‘innocence,' his intention must be to shield criminals from punishment...
...Tung criticized those who pressed for the issuance of complete codes as unrealistic and argued that the temporary incompleteness of the law is unavoidable in a newly rebuilt country...
...These liberal scholars stressed that "reform through labor" was actually used primarily to fulfill production quotas and to increase the economic strength of the regime...
...Labor camps are established in all provinces, autonomous regions and large cities...
...Director of the Research Department...
...3) Those who are able to work but refuse to do so, or who violate regulations, disturb the peace and are now jobless...
...Franz Michael on The Party...
...This extrajudicial measure of coercion, issued by the State Council immediately after the abrupt conclusion of the "Hundred Flowers" period, was evidently designed to punish those intellectuals who had voiced their discontent...
...Chou added, that within two days after the trials were over more than 100 workers had gone to the authorities to confess their undiscovered crimes...
...In 1957, in addition to the more than 750,000 cadres especially assigned to the job of eliminating counter-revolutionaries, about one million activists were engaged in the same campaign...
...The author unequivocally demands that the people's courts be absolutely subject to Party leadership: "People's courts must not only ask for general directions regarding policies, Party lines and other important matters from the members of the standing committees of the Communist party, but they must also accept directions from the Party in trying individual cases...
...Such an attitude in fact represents the capitalist class's reactionary principle of presumption of innocence...
...In the latter part of 1957, six prominent Communist supervisory officials, judges and procurators were purged by the Party and attacked at the public anti-rightist meetings because of their liberal leanings...
...In line with the recent "Great Leap Forward" campaign, various simplified procedures have been improvised by individual people's courts in order to match the efficiency of economic production...
...In defense of the present crude and sketchy laws, a writer in the legal journal, Cheng-fa Yen-chiu (Political and Legal Research), stated: "[Complicated] laws cannot go to the masses...
...Peking now takes the position that since the People's Republic is infallible, its omnipotent apparatus should not be impeded by any juridical restrictions...
...For the 28-month period between June 1955 and October 1957...
...have been enacted since then, there has existed, in general, a partial legal vacuum...
...However, in the May 1958 issue of the Cheng-fa Yen-chiu, a symposium of nine faithful Communist judges and procurators bitterly denounced the "rightist" and "capitalist" view of those scholars and reiterated the omnipotence of the Party policy as the basis for legal decisions...
...legal reformers assailed this policy...
...He also stressed that "the state will force them to work if they do not want to do so voluntarily...
...It provides that "All other crimes committed with counter-revolutionary intent but not specified in the law should be punished according to analogous specified crimes...
...Shanghai...
...Cheng stated, "were disposed of in 80 minutes flat, from the arrest of the criminal to the passing of the sentence...
...These specialists also declared that the people's constitutional This is the eleventh article in our special series on China...
...In these two studies, some conflicts among the different procedures of the people's courts in the large cities were adjusted...
...Although Lo Jui-ch'ing...
...and Wang Li-chung, Director of the First Office, Supreme People's Procuracy...
...However, these two documents were sent to the lower courts only on an experimental basis...
...Lu Ming-chien...
...Two typical cases...
...If Peking's present political climate (which points to more rigid control and less freedom) continues, there is little likelihood that any legal reforms will be carried out in the near future...
...Previous issues contained articles by Valentin Chu on National Character...
...The principle is incorporated in Article 16 of the Regulations for the Suppression of Counter-revolutionaries, enacted in 1951...
...If our laws were rigidly formulated in accordance with the legal concept of the bourgeoisie, they would hinder the class struggle and shackle the masses...
...Roderick MacFarquhar on The Minorities...
...The release of such "antisocial parasitic elements" is to be determined by the camp authorities...
...In the early part of 1956...
...Persons of the above four categories may be sent to a special labor camp for an indefinite period of time...
...Although this book did not espouse the immediate rejection of this unpopular principle, it was in favor of its eventual eradication: "After a number of years of national Socialist reconstruction and experience in the struggle against crimes, and when our criminal code has become more nearly complete, we might then consider the abolition of the analogy doctrine...
...Su Lui, writing in Cheng-fa Yen-chiu in 1957 advocated this view...
...He holds that the law is an instrument of the state to realize Socialism and to suppress the enemy class...
...He reported that during the Great Leap Forward campaign, in a steel production area, where most cases were against steel workers, mass rallies of factory workers were called to learn the significance of the cases...
...The decision is then submitted to the People's Committee of the province or city (or its authorized organs) for final approval...
...Here, Tao-tai Hsia analyzes the administration of justice and the nature of criminal law in Communist China...
...Hsia is a professor at Yale University's Institute of Far Eastern Languages...
...The rule of "free conscientious judgment of evidence," a salient feature of Nationalist criminal law...
...In discussing the apparatus of the people's state...
...Subsequently this view was sharply attacked...
...In Lin-hsien, a small steel production center in Honan Province, propaganda teams composed of pre-trial investigators, procurators and judges were sent to the steel factories to hold demonstration trials of important criminal cases...
...He emphasized that "our people's democratic laws must not be prematurely, over-rigidly and subjectively enacted...
...A similar project to unify the criminal procedures of the intermediate and lower people's courts in all provinces was carried out in 1957...
...A draft of this code has also been issued to the lower courts for experimental purposes...
...Following the Soviet system, the educational role of law is emphasized in Communist China...
...They complained that the constant shift of policies actually left the people in the dark and that the present meager laws were as elastic as a "rubber ruler...
...In his second article, which probably reflects the current official position...
...It was reported later that a large number of students were expelled from school because of such activities...
...the Minister of Public Security, had admitted such mistakes in his 1956 report to the National People's Congress, a Cheng-fa Yen-chiu author recently attacked these criticisms of correctional labor as "poisonous slander by rightist elements...
...And since judicial bodies play no part under this measure, the adverse publicity of court trials which might have shown the Government's high-handedness toward the youth (a favored group in Communist China) was avoided...
...Yuan-li Wu on the Economy...
...Forced labor has been used extensively in Communist China to serve two purposes: to check internal dissent and to keep the labor cost of ambitious economic projects to a minimum...
...Deputy Chief Justice of the Supreme People's Court...
...To the hostile classes the state apparatus is the instrument of oppression...
...They cannot be used by the masses as weapons...
...Tung Pi-wu, President of the Supreme People's Court, in his 1956 report to the National People's Congress, admitted that in some courts this right was restricted or forbidden...
...The jurists argued that though all judges should follow the Party leadership by observing its general policies and directions, the Party should not interfere with trial work and decisions in individual cases...
...Cheng Tou proudly states that justice in the Great-Leap-Forward style was achieved by enforcing a policy of "arrest on the spot, investigate on the spot, indict on the spot, try on the spot and sentence on the spot...
...This provision actually makes judges ex post facto legislators...
...At the same time, the laws and decrees should be written in common, popular and clear language, with both vivid and concrete expressions...
...therefore the enactments must proceed from the simple to more complex provisions...
...A similar attitude is expressed in an official textbook, Lectures on the General Provisions of the Criminal Law of the People's Republic of China, published in September 1957 by the principal training institute for judges and prosecutors in Peking...
...The principle of presumption of innocence, strongly urged by legal reformers in 1956, has recently been openly rejected in official publications...
...Among these political criminals, over 5.000 were members of the Communist party and over 3,000, members of the Communist Youth Corps...
...Although the draft of the criminal code has not been made public, some features likely to be included in it can be detected from the discussions of Communist jurists in the official legal journals...
...Lawyers in the outside world will find this decree even more abhorrent than the Soviet prototype of "anti-social parasitic laws" enacted by some individual republics of the USSR in 1957...
...2) Minor counter-revolutionary and anti-Socialist elements who are dismissed from their jobs and cannot earn a living...
...In a leading editorial in December 20, 1957, The People's Daily assailed these Communist jurists: The "common characteristics of these rightists is that they all plotted to turn such important weapons of the people's dictatorship as state supervisory organs, judicial organs and prosecutors' offices into instruments of the bourgeoisie, of rightist, anti-Party and anti-Socialist elements...
...when the pendulum in Red China had swung back in a less liberal direction, a Cheng-fa Yen-chiu author criticized this view as unrealistic...
...Theodore H. E. Chen on Education...
...A recent legal article on the "Reactionary Nature of ‘Judicial Independence' " indicates that Article 76 is a dead letter...
...Article 76 of the Constitution stipulates that the people's courts are independent in the exercise of their judicial authority and are subject only to law...
...Chinese legal writers, following the latest Party line, have denounced the presumption of innocence as a "reactionary bourgeois principle of law, which only serves the interest of the enemy of the people...
...It is pointed out in the decree that its purpose is not only to serve as a measure for "reform through labor," but also as a means of solving the employment problem...
...Supreme People's Court: Liu Hui-chih, Deputy Procurator-General of the Procuracy of Transportation, Supreme People's Procuracy...
...posters with anti-Government and anti-Communist slogans were found on these campuses...
...During the "Hundred Flowers" stage, a group of legal scholars, citing the above provision, urged the Communist party to grant more independence to the courts...
...During the "Hundred Flowers" period, a number of law professors in Shanghai and Peking urged the exclusion of the crime-by-analogy concept from the future Communist criminal code and advocated the restoration of the nullum crimen sine lege (no crime without a law) doctrine...
...The official explanation for the long delay in enacting detailed statutes and complete codes was given by Tung Pi-wu, newly elected Vice-Chairman of the State and former President of the Supreme People's Court, in his report to the National People's Congress on September 19, 1956...
...Chia Ch'ien, Chief Justice of the Criminal Division of the Supreme People's Court...
...Since all laws and decrees intended to exercise dictatorial power over our enemies or to solve the internal contradictions among the people must be controlled by the masses, all of our laws should be drafted in such a way as to meet the above requirement...
...Chu Yao-t'ang...
...Since the main activity of the people's court is to try cases, the correct handling of each individual case must reflect concrete, thorough implementation of Party policy...
...J. P. McCarthy on The Peasants...
...Unlike the Soviet "anti-social parasitic laws" under which the decision to exile a person is to be made by a meeting of neighbors, the Chinese decree authorizes many different groups of persons to render such judgment...
...Lo Jui-ch'ing, in his 1957 report on counter-revolutionary activities, pointed out that according to a "scientific" estimate based on experience obtained from campaigns against counter-revolutionaries, approximately five per cent of the personnel in the Party, Government, Army, mass organizations, schools, etc., are undiscovered counter-revolutionaries...
...As a result, he asserted, "it is difficult for the people to observe the present laws of the People's Republic...
...Article 100 of the Constitution, which provides that "citizens of the People's Republic of China must abide by the Constitution and the law...
...During the "Hundred Flowers" period of relative political relaxation in the spring of 1957, a number of liberal-minded Chinese jurists criticized the Government's reluctance to produce complete codes...
...has also been rejected by the Communists...
...A plea by liberal jurists for the restoration of this rule was made briefly, and in vain, in 1956...
...But in the April 1958 issue of this periodical, the same author wrote another article denouncing his previous view as "extremely wrong and absurd...
...This measure is directed against the following four groups of people: (1) Those who evade useful work and "behave like rascals...
...Therefore, our laws, for the convenience of the people, should be easy to understand, remember, execute and check...
...In case his client refuses to follow his advice, he must denounce his client and testify against him...
...For instance, Cheng Tou...
...If Party leadership is not exercised in the trial work of each case, then Party leadership would become an abstract formality...
...In 1949, Mao Tse-tung formulated the "reform through labor" policy in his famous essay, "On the People's Democratic Dictatorship...
...voiced by legal reformers during the "Hundred Flowers" period, are totally rejected by the regime...
...In line with Mao's objective of using the legal process as a powerful weapon, the Communist Government, immediately after its conquest of the Chinese mainland in 1949...
...according to the 1958 People's Handbook, over 100,000 "counter-revolutionaries" were arrested...
...These two groups are limited to those whose offense is not punishable under the criminal law...
...Mao has declared: "The army, police and courts of the state are instruments by which classes oppress classes...
...In the latter part of 1958...
...However, he conceded that the recurrent proposals for the early enactment of important basic laws could not be lightly dismissed: "If we let the present situation of the incompletion of laws continue, or if we drag out the enactment process too long, there is no gainsaying that there will be a serious problem...
...The condemned list include Wang Han, Deputy Minister of Supervision...
...abrogated all the laws codified by the Nationalist Government...
...Hellmut Wilhelm on Literary Developments...
...The following is a typical warning directed to Chinese prosecutors and judges: "[Since the Constitution and the Regulation Governing Arrest and Detention] provide that people are subject to arrest only in accordance with law, those who are legally arrested must be presumed guilty...
...Crime by analogy (a principle of Soviet criminal law recently attacked by Soviet legal scholars) is strongly defended by the Chinese jurists...
...Just before the abrupt end of the political relaxation in the middle of 1957...
...Alexander Dallin on the Commune Controversy...
...So-called guiding policies and principles would become empty words...
...The 1951 law that established the people's courts specifies that they are to conduct propaganda and education among litigants and among the masses in general concerning the observance of the laws...
...During the "Hundred Flowers" period, a number of legal writers ventured the opinion that attorneys should be allowed to keep professional secrets...
...If one is confident that he has enough evidence to sustain the charges against a counter-revolutionary criminal and yet presumes the accused innocent, his intention must be to see these criminals go scot-free and to let them continue to do harm to the people...
...The few statutes in existence, they said, were full of extremely vague and sweeping provisions...
...It was resolved at the meeting that pre-trial investigators, procurators and judges, in the interest of efficiency, were free to put any procedural rules in abeyance...
...Policy as a substitute for laws bore the brunt of the law professors' attack in the short-lived relaxation period...
...Persons committed there are forced to work and to be indoctrinated...
...They pointed out that the heads of the "re-education centers" failed to adhere to the well-publicized 1956 Party principle that "reform is the primary object and production is only secondary...
...Today, the proposals to liberalize the laws, to speed up the long-delayed codification process, to improve the present confused state of law...
...The workers became so law-conscious after such propaganda trials...
...Under this doctrine, a judge, when using his discretion to evaluate the evidence, is to be guided by logic, common sense and especially his own conscience...
...the deputy director of the newly established Institute of Juridical Sciences of the Chinese Academy of Sciences...
...It is violent, not benevolent...
...Wu Ch'uan-yi, then a member of the Bureau of Law Codification, an organ of the State Council, had said earlier that "laws are constantly violated" and that the present scanty enactments are "exceedingly confused" and have "hundreds of conflicting provisions...
...and habitual cheaters and thieves...
...For instance, according to a report in the People's Daily (September 13-15, 1957...
...The regime's insistence on making law a part of general education is reflected in a special survey made in 1958 by Chou Hsin-min...
...The most significant of the ex-trajudicial coercion measures in Communist China is the decree entitled "Decision on Re-education and Rehabilitation Through Labor," issued by the State Council on August 3, 1957...
...It was also decided that the pre-trial investigators, procurators and judges should form a mobile team to bring the court to the people...
...Accompanying such meetings, a tremendous legal propaganda campaign was launched in the press, on hand-written wall newspapers, in cartoons and pictures, on the radio and in handbills, in public debates, street speeches and exhibitions...
...Stanley Spector on the Overseas Chinese...
...As reported in the 1956 People's Handbook, by 1955, people's courts in all large cities had formulated and adopted their own civil and criminal procedures...
...This principle was adopted by the Nationalist Criminal Code and is recognized by all civilized nations...
...Although a few basic statutes (the marriage law, the agrarian reform law, the trade-union law, regulations for the control of counter-revolutionaries, etc...
...Civil administrative organs, the police, the unit in which the person works or studies, and the parents or guardians of the person may pass the "sentence...
...Peking seeks to use the law as a means of training people to fulfill the responsibilities imposed on them by the Communist party and State...
...When no applicable laws are available, "political and legal workers" are directed to adhere to the policy of the Central People's Government and of the Communist party...
...Communist China's First Decade — 11 JUSTICE AND THE LAW By Tao-tai Hsia THE MARXIST-LENINIST concept of "class justice" is fully concurred in by Chinese Communist chief Mao Tse-tung...
Vol. 42 • June 1959 • No. 25
