How Law Imitates Life for Chinese Judge
Legal Roller Coaster
Like many figures listed in "Who's Who in China," Zhu Mingshan has a strange, decade-long hole in his resume. He does not attribute the 1966-76 gap to an extended frolic across the world or to an experiment in running his own business, for at that time any attempt to flee China or engage in private enterprise could lead to imprisonment. Rather, the vice president of the Supreme People's Court says his entire profession disappeared.
When Mr. Zhu was appointed to China's top court in 1964, he did not realize that a legal "dark age" would steal 10 years of his life. The rise and fall of Zhu and a generation of legal scholars helps explain why China's struggle to create a society that is ruled by law is apt to stretch into the next century.
Fresh out of school with a rare doctorate in law, Zhu was selected in 1964 as one of the educated elites who would help build Chairman Mao Zedong's New China. Mao, following his victory in the 1949 Communist revolution, "supervised the writing of the Chinese Constitution and was considered the founder of the new legal system," says Zhu.
But years later, when legal scholars began to question Mao's edicts and attacks on his co-rulers, he simply banished law and lawyers. During the radical Cultural Revolution that began in 1966, Mao waged a 10-year battle to destroy any checks on his power. Shortly after the revolution began, Mao ousted China's president and threw him in prison. There was no judge or jury to question the action, and the fallen leader later died alone in a jail cell. Millions of other Chinese met with similar fates. "When Mao launched the Cultural Revolution, he destroyed the entire legal system," Zhu says.
In an effort to recreate China in his own image, Mao ordered millions of radical Red Guards to attack scholars, schools, courts, and churches. Mao's portrait became China's sole icon, and his Little Red Book of Quotations replaced the educational and legal establishments. "That was a time of 'no god in the heavens and no law on earth'," Zhu says, quoting one of Mao's battle cries.
From the height of Chinese society, Zhu was exiled in 1966 to a small, backward village "to learn from the peasants ... by planting vegetables and feeding pigs," he says.
Mao's death in 1976 marked the end of the Cultural Revolution and paved the way for the resurrection of both Zhu and the law. Recalled from the rice paddies, Zhu and other legal experts were put in charge of pulling order out of the chaos of Mao's rule and laying the groundwork for China's market reforms and opening to the world. Law schools were reopened, but many of China's courts were staffed by party and army officials who had no legal training. "Just last year, Beijing opened its National Judicial College," says Zhu, the leading force behind building the school. By the turn of the century, China plans to require more than half of its senior and middle-ranking judges to have law degrees, he adds.
And as part of China's drive to jettison its Soviet-model economic laws, Zhu and a host of other judges, legislators, and lawyers have begun traveling to the West to compare legal systems. In contrast with Mao's era, when contact with foreigners was grounds for arrest, China now "welcomes exchanges with overseas judges and lawmakers," he says. Zhu, who has been to the US, Canada, Belgium, Switzerland, Italy, and France, says "no one country can become an absolute model for China's legal system." Rather, "China will adapt laws from other nations to its own unique conditions," he adds.
Just as China's leaders aim to implement market reforms without weakening the party's grip on power, most changes in the law over the past two decades have centered on economic rather than political rights. Zhu and other government officials say that the recent abolition of "counterrevolutionary offenses," often used to punish critics of the Communist Party, marked a milestone in China's criminal law. "The revolution was over long ago, so those crimes of counterrevolution no longer fit China's circumstances," says Zhu.
Yet many Chinese and American legal scholars say the same spectrum of political acts is now prohibited under laws against "endangering state security" that cover everything from terrorism to offending Beijing in articles posted on the Internet. Ironically, calls to abolish antisocialist crimes came from liberal scholars in the relatively open era of the late 1980s, just before those laws were used to punish thousands of protesters who took part in China's pro-democracy movement in 1989.
A legal scholar dismissed from his post for taking part in the peaceful protests says "Right now the Communist Party is paramount. China will never have a system that is ruled by law until the law becomes supreme - above any ruler and above the entire party."
New Supreme Court Chief Named
Yesterday, China appointed a new Supreme Court head, Xiao Yang, whom liberal legal scholars see as a reformist. But that move was balanced by the appointment of hard-liner Li Peng - mastermind of the 1989 crackdown on students - as head of the law-making National Peoples Congress.