Bringing Justice to China

Starting from scratch will not be easy for the new regime

No law, no heaven" is an old Chinese way of describing lawlessness.

China's new rulers might put it more practically: no law, no Four Modernizations program to improve agriculture, industry, defense, and science and technology. "It is essential to strengthen the socialist legal system if we are to bring great order across the land," says Chairman Hua Kuo-feng. That means assuring bureaucrats, intellectuals and skilled workers essential to China's development that they will not be summarily sent off to the rice paddies or driven to suicide, as they often were under Mao. Fear of government highhandedness, party leaders now admit, has been running rampant. To boost morale and bring great order, the resurgent moderates who now run China last year adopted a constitution that provides for open and fair trials, and they have promised a new criminal code within the year. Foreign investors will also get legal protection from China, which sorely needs infusions of technology and capital (goal: $100 billion by 1985).

But creating a rule of law will be difficult for a country that has had virtually no formal legal system for almost two decades. After they came to power in 1949, the Communists issued some Soviet-style statutes, but the system withered away during the Cultural Revolution. Public trials were few and mainly for show; lawyers were almost nonexistent, and judges were largely untrained hi the law. In the late '60s the Peking People's Daily ran an editorial titled "In Praise of Lawlessness," condemning law as a bourgeois restraint on the revolutionary masses.

Though the Cultural Revolution stretched lawlessness to an extreme, China never has had much use for formal litigation and lawyers. Ever since Confucius, the Chinese have valued collective harmony over the assertion of individual rights and the adversary system now characteristic of American justice. Lawyers did not practice privately in China until after the 1911 Nationalist revolution, because laws banned the "fomenting" of litigation, lest it disturb the smooth fabric of Confucian society. "It is better to enter a tiger's mouth than a court of law," goes another Chinese proverb.

Thus disputes have long been resolved outside the courtroom. Under the Communists, community and factory mediation committees have handled small matters, like bicycle collisions or family squabbles. The emphasis is on conciliation and confession, sometimes extracted at "struggle sessions" between the offender and his neighbors or coworkers. More serious crimes, like robbery or rape, are dealt with by the police, usually with party officials looking over their shoulders. Although the crime rate is hard to determine, not many Chinese go to jail. For instance, Shanghai (pop. 10.8 million) has only 2,600 inmates in its prison, giving the city an incarceration rate about one-sixth that of the U.S. Chinese authorities claim that the recidivism rate is less than 1%, and that escape is almost unheard of. Asks a Shanghai prison official: "Where would they go to hide?"

All this may seem enviable to Americans besieged by high crime and bogged down in litigiousness. Indeed, some U.S. reformers point to China's neighborhood mediation as a cheaper, less fractious way of settling minor disputes than burdening the already choked courts. But there is a darker side. Many criminals who do not go to prison wind up in forced labor camps, as do people who have committed political offenses. Because of the more liberal new climate, the Peking press is now full of stories castigating local Communist Party bosses for running their own prisons, factory leaders for locking up and torturing workers, and village party leaders for abusing peasants. Chinese papers regularly announce reversals of unfair punishment meted out by the discredited Gang of Four, the radical clique headed by Mao's wife that was driven out of power shortly after Mao died in September 1976. Typical is the case of three Chinese students sentenced to hard labor in 1974 for demanding "legality and democracy" in China. Last January, they were released and "rehabilitated."

Another sign of liberalization is the revival of Fifteen Strings of Cash, a 300-year-old opera about an upright Manchu judge who reverses the convictions of innocents who had been tortured till they confessed. Banned for a decade by Mao's wife, the opera is now playing on stage and screen to packed theaters all over China. Wall posters are even beginning to call for "equality under the law," formerly an area taboo for public discussion. PUBLIC TRIALS ARE WONDERFUL, proclaimed a Peking newspaper last fall, boasting that there had been five trials in six months in Soochow, a city of 1 million people.

Public trials are likely to become more frequent, predicts Columbia University Law School's China Expert Randle Edwards. But, he adds, they will serve mostly to educate the public and allow a defendant to plead for leniency. For the most part, guilt or innocence will be determined before trial by police investigation. The important question is how fair that investigation will be. Asks Jerome Cohen, director of East Asian legal studies at Harvard Law School: "How long can the defendant be held before sentencing? Can you keep him hungry all the time? Can his cell mate work him over? Can his interrogators frighten him and lie to him?" These questions, also once forbidden areas, are now being debated on wall posters and in newspaper articles.

The 1978 constitution revived the procuracy, an agency that is supposed to guard against arbitrary arrests. Police who make an arrest must obtain approval of it within a week from the procuracy, although there is no limit on how long a prisoner can be held before trial. The new criminal code is expected to prohibit frame-ups, forced confessions and illegal house searches. It may also stipulate punishments, including the death sentence (by firing squad), for treason, murder and certain other serious offenses. But people sentenced to death will often be given two years of hard labor during which to repent. In this instance the new leaders quote Mao, who said: "Once a head is chopped off, it cannot grow again as chives do."

Equally important to restoring morale&$151;and productivity--will be a system of economic laws and courts. Agreements to supply a factory with a quantity and type of materials at a certain time and price have to be reliable, which means setting up a system to enforce contracts. Though the Chinese are not likely to admit it, their economic courts to handle deals between state-run factories and agencies will probably be patterned on the Soviet Union's sophisticated arbitration system.

Joint ventures between China and capitalist companies face an obstacle in the new constitution, which guarantees the people the ownership of the means of production. Chinese bureaucrats have been studying Yugoslavia to see how it reconciles Communism with capitalist undertakings. The Chinese have also been finding out how Japan deals with foreign patents. Laws to protect foreign property and profits are being drafted. Says Wang Chia-fu, one of the drafters of the new legal code: "We will follow the general principle of mutual benefit. If only one side benefits, then we won't have much trade."

A major roadblock facing China's attempts to set up a legal system is cost. Training a few experts to handle the legal aspects of trade is easy, says Harvard's Cohen. The Chinese Council for the Promotion of International Trade already has a staff of 40, headed by a chemist, to negotiate foreign contracts. But Cohen estimates that a full-scale court system for China's 1 billion people would take well over 200,000 trained judges, prosecutors and lawyers. Since 1949 Peking University's law faculty has produced only 1,000 graduates; this year there will be 60. China's need for many more lawyers will inevitably collide with its urgent need for other skilled professionals, like engineers and physicists.

There is also the risk that if a legal bureaucracy becomes too entrenched, a new generation of radicals will come along and start another round of lawlessness. Communist China's previous efforts to develop formal legal codes were cut off by anti-rightist crackdowns. Such are China's cycles that some of the people who drafted those stillborn laws are now being rehabilitated to work on the new ones. One reason why China can hope to produce a code in a short time is that the drafters can just dust off and update some of those old laws.

In any case, a rule of law, American style, would put restraints on the rule of the Communist Party, which under the 1978 constitution remains China's final authority. The constitution continues to distinguish between the "people," who enjoy its protection, and vaguely defined "enemies," like "rich peasants," "counterrevolutionaries," "landlords," and such "bad elements" as the "newborn bourgeois," who do not.

The most infamous members of this enemy group are the Gang of Four, who have yet to be tried, more than two years after they were arrested. "Our struggle against the Gang of Four is a very sharp and complicated class struggle, a life and death struggle," says Chang Chunglin, a deputy director of research at Peking's Law Institute, "and people who have experience in such struggles know quite well that they are difficult to deal with and still go through all necessary legal procedures." Until recently the "enemies" made up as much as 5% of the population, but the list has been shortened this winter as various "capitalists" and "landlords" have been restored their rights and in some cases their property.

Unlike U.S. judges, Chinese judges have not been independent, but beholden to the party. A Central Committee communique issued in December hints at the debate now going on with this waffling message: "Procuratorial and judicial organizations must maintain their independence as is appropriate."

The Communist Party, at once seeking to improve public morale with fair laws and to maintain its total control, is left awkwardly balanced. Explains another deputy director of the Law Institute, Li Pu-yun: "Everyone in China, including party members, is under the law. But at the same time we don't think the law should be almighty." The compromise may be less than satisfactory, but still it is an improvement over the "lawlessness" Peking praised only a decade ago.

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