THE NEW CONSTITUTION AND
CHINA'S EMERGING LEGAL SYSTEM
IN PERSPECTIVE
W. ALLYN RICKETT*
On December 4, 1982, China's National People's Congress (NPC) adopted the fourth and perhaps most favourable constitution since 1949 in terms of paper guarantees for the protection of individual citizens against the arbitrary abuse of Party and state power. When coupled with such laws as the Criminal Code and Criminal Code of Procedure, promulgated in July 1979 and implemented in January 1980, there is some room for optimism that China has embarked on a path toward a stable legal system and the provision of basic guarantees for the rights of its citizens. However, given China's traditional disregard of individual rights and the almost constant state of political turmoil prevailing throughout this century, not to mention the Chinese Communists' generally negative attitude toward jural or formal law in the past, such optimism may well prove to have been undeserved. It might be worthwhile to look briefly at previous efforts on the part of the Chinese Communists to establish some semblance of a stable legal system before trying to reach any conclusions about the future.
The early judicial experience of the Chinese Communists, which began with the special tribunals set up in Hunan in 1926-27 to try "bad elements," can at best be described by Mao Zedong's own words "zao de hen" [extremely crude]. It was not until November 1931 with the founding of the Chinese Soviet Republic in Jiangxi that any real attempt was made by the Communists to establish a formal body of law and judicial procedure. During this and the following Yenan period, laws were promulgated and legal institutions established, but this took place within the context of violent revolutionary struggle and the war of resistance against Japan. Moreover, judicial personnel
* Professor Rickett is Professor of Chinese Studies at the University of Pennsylvania.
THE NEW CONSTITUTION AND
CHINA'S EMERGING LEGAL SYSTEM
IN PERSPECTIVE
W. ALLYN RICKETT*
On December 4, 1982, China's National People's Congress (NPC) adopted the fourth and perhaps most favourable constitution since 1949 in terms of paper guarantees for the protection of individual citizens against the arbitrary abuse of Party and state power. When coupled with such laws as the Criminal Code and Criminal Code of Procedure, promulgated in July 1979 and implemented in January 1980, there is some room for optimism that China has embarked on a path toward a stable legal system and the provision of basic guarantees for the rights of its citizens. However, given China's traditional disregard of individual rights' and the almost constant state of political turmoil prevailing throughout this century, not to mention the Chinese Communists' generally negative attitude toward jural or formal law in the past, such optimism may well prove to have been undeserved. It might be worthwhile to look briefly at previous efforts on the part of the Chinese Communists to establish some semblance of a stable legal system before trying to reach any conclusions about the future.
The early judicial experience of the Chinese Communists, which began with the special tribunals set up in Hunan in 1926- 27 to try "bad elements," can at best be described by Mao Zedong's own words zao de hen [extremely crude].* It was not until November 1931 with the founding of the Chinese Soviet Republic in Jiangxi that any real attempt was made by the Communists to establish a formal body of law and judicial procedure. During this and the following Yenan period, laws were promulgated and legal institutions established, but this took place within the context of violent revolutionary struggle and the war of resistance against Japan. Moreover, judicial personnel
* Professor Rickett is Professor of Chinese Studies at the University of Pennsylvania,
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