Law and Society. China struggles to create rule by law, not rule by party
``The system is still far from perfect, and there is much to be done in making everyone respect and observe the law,'' stated Peng Zhen, chairman of the Standing Committee of China's National People's Congress, in mid-1984. Not a particularly startling pronouncement for a high government official of any country to make -- except that when Peng Zhen said ``everyone,'' he especially meant those in positions of power.
As he and many others high in Deng Xiaoping's regime now acknowledge, lawless governance has long been one of China's main woes. This year, a five-year campaign has been launched to educate government functionaries and the populace in the basic elements of law.
Reinstituting an independent legal system that works in post-Cultural Revolution China will be no small task. But the new leaders who overturned the 10-year reign of terror of Mao Tse-tung's wife and her ``gang of four'' consider it imperative and urgent. They see clearly that social stability requires swift, orderly, and fair punishments for defined crimes.
New economic policies cannot speed China's modernization unless contracts and protections for sanctioned ventures are respected by authorities and enforced by courts. In order for those policies to endure, they must be kept separate from specific personalities. And no one, especially anyone in the Communist Party, can be allowed to disregard the law. That way, declared Peng Zhen, ``it will never be easy for careerists and conspirators to usurp the power of our party and the state.''
To carry out this mission, a new army of lawyers and judicial personnel is being trained. China's 5 law schools and 29 law departments are turning out 3,000 graduates a year -- far below the estimated 34,000 new lawyers needed every year. Still, the number is impressive given the lack of any legal education at all throughout the years of chaos.
The more than 100 comprehensive new laws passed since 1979 include China's first patent law and a criminal procedure law that defines proper detention, arrest, investigation, trial, and appeal procedures. China's legal scholars participate in exchanges with foreign law experts so they can formulate legislation for areas not yet touched in its legal code, such as libel and copyright.
The new campaign will multiply the teach-ins, newspaper columns, and TV specials that educate the masses in how to press for their rights if they are violated.
Credible official explanations of why China must now try to make the law a force independent of party politics and personalities are easy to find. According to Peng Zhen, the problem dates back to the time when the guerrilla Red Army was gradually winning over rural China. Throughout the revolutionary war period, Communist Party policies had the force of law.
After the founding of the People's Republic of China in 1949, a provisional constitution and later an official one were drawn up and some laws were passed, but people became accustomed to taking party authority as a substitute for law.
As a state-sponsored brochure on China's legal system continues the tale, two decades of ``leftist'' -- i.e., Maoist -- rule first damaged, then devastated the legal system. Shortly after 1957, people's courts lost their independence from the party, and people on trial lost their right to defense by a lawyer.
For 10 years after the launching of the Cultural Revolution in 1966, ``people's courts at various levels became paralyzed. . . . No prescribed judicial proceedings were observed in criminal cases, especially cases involving counterrevolutionaries; nor were sentencing and punishments meted out in accordance with provisions of the law. As a result, the distinction between guilt and innocence was never clear-cut and large numbers of people were unjustly, falsely, or wrongly charged.''
Certainly there has been progress since then. But as a recent Peking Review editorial acknowledged, ignorance and disregard for the law continue at a serious level.
Some localities have sold elective offices to the highest bidder instead of following the electoral law. Unlawful vendettas by authorities, such as the 1983 Wuhan police attack on more than 500 private business people in that city, persist. In many areas people don't comprehend the protection that contracts provide or realize the importance of registering marriages as the law specifies. Government spokesmen even attribute much petty crime to a lack of understanding of the Chinese legal system.
Some cynics familiar with China and the way law functions in Western democracies doubt the sincerity and prospects of the respect-the-law campaign.
A long-time foreign resident points out that although authorities are publicizing the stabilizing protections of China's Constitution, nothing in the document effectively prevents the government from continuing to change policies first and amend the Constitution later, its standard practice for more than two decades.
But if the state can indeed succeed in implementing and spreading what Peng Zhen called ``the idea of the rule of law,'' the reward would be the prevention of the return of Cultural Revolution-style tyranny and anarchy. The stakes in this campaign, as in many throughout the country's past 35 years, are high.