Due Process in China
A brief history on Chinese law
The Chinese word for justice was fa meaning fair, straight, or just (can also mean standard, measurement, or model) but it is different be warned it’s different from western law which has 4 interpretations in Chinese including li, (order) li, (rite, decorum) fa, (human laws) and zhi (control). Often fa was preceded by xing (referring to most forms of punishment) making xing fa (kind of meaning fair punishment, but if you saw the list of punishments I’m not sure you’d agree)
Confucianism and Legalism heavily influenced the Chinese legal system, under Confucianism the state was supposed to lead the people faithfully and create a sense of shame so that the people would bend to the will of the state while under Legalism law is a standard that everyone’s subject to and is backed by the state, but the thing they have in common is that they both picture the state as something that both knows better and is protecting them. That’s all I’m going to do on old Chinese law go read the wiki if you want to know more.
When the new government, the People’s Republic of China took over they quickly got rid of the laws the R.O.C. had made And tried to copy the legal system of the Soviet Union but with the Sino-Soviet split (1960) all law work came under suspicion of being counter communist and that led to the collapse of the legal system. A new of justice came into play called judicial populism that encourages substantive justice and problem-solving.
Over the past century, China has tried to draw up a constitution, the first attempts starting in the Qing dynasty due to several changes in government China’s constitution has been changed as many times or more finally when the people’s republic of china took over they decide the provisional constitution wouldn’t do and drew up its first constitution in 1954 based on the constitution of the soviet union of course. It failed and wound up with no legal force behind and you probably know that law with no force is no law at all. On too number 2 this constitution was based on the ideology of the Cultural Revolution and was instituted during 1975 subjecting the national people’s congress to the communist party of china and removed constitutional rights like equality under the law and property succession. It was quickly disregarded as well through loopholes in its provisions and non-adherence to the guidelines that had to do with the national people’s congress. The third constitution was adopted in 1978 this one more separated from the great revolution it retained a few aspects though, including the communist party control of the state structure but it still broke down eventually as the focus moved to economic construction and modernization. (A.K.A. the great leap forward that took them about 5 years back) See: https://www.youtube.com/watch?v=xWRhPf9Qzmw
Okay, I’m done go read the wiki if you want more. https://en.wikipedia.org/wiki/Chinese_law
Most of the articles I can find say nothing about Due process in china and want china to follow it, but here’s an article that may have something to say.
A lot of debates have surfaced over time about which law system works better, adversarial or inquisitorial, and which presents what problems. Many advocates in places have thought about introducing some parts of common law into their law systems, likewise with some common law states in England who thought about instituting an examining magistrate in the pre-trial process that’s more like the rest of the continent of Europe, similarly in the USA people have suggested replacing the common justice system with an inquisitorial system often after a long public trial that took forever to go nowhere. Debate continues without anyone getting closer to which of the two is better, in China, legal scholars keep on debating about whether a common law system or an inquisitorial is better for the country. But regardless of which your country uses the process of finding the truth should be guided by due process and conducted in a manner that is socially legitimate.
Okay, now I’m just going to skim these next few pages since I already covered most of it in the wiki. During the anti-rightist campaign of 1957, they killed hundreds of smart people, legal professionals, scholars, and of course interrupted the drafting of a criminal procedure. Then the great leap forward became a leap back and a new attempt was put forward in the name of law and order that resulted in around 200 articles in 1963, but it was short-lived following the advent of the cultural revolution.
As usual, that revolution led to a bunch of people dead, tortured then dead, or murdered to correct the “political mess at the time” and laws provided almost no protection because all the enforcers were either dead or on the side of the revolution. Most legal institutions were demolished including the National Peoples Congress, the Ministry of justice, and the Peoples procurators, and of course, once the revolution was over they need new laws which was a problem because they had killed almost everyone who knew how to make laws. Chinese leaders felt an urgent need to implement criminal procedure trying to stop the rampant abuse of order and authority of the cultural revolution (if you start a revolution against the government who at the time is the law and order what do you think is going to happen) the version of criminal procedure code taking up in 1979 was inspired by the drafts made in 1950 and 1963 that had been based on the inquisitorial system of central Europe, though they also contained Marxism and Leninism and the law was still seen as a tool of the proletarian dictatorship designed to protect people from the enemies of the communist party.
Major flaws still plagued the law system in 1979 not because it was an inquisitorial process, but because of deficiencies and ambiguities present in the procedural law and a lack of legal professionals, it didn’t function as a law should especially because the legal officials kept on taking the easy way and using the loopholes. The officials often bypassed procedural law and used yanda tactics or strike-hard tactics often bypassing due process in their anti-crime campaigns with lots of swift arrest and convictions, not all of them guilty.
During the early times the judges, prosecutors, and police weren’t used to functioning under the formal laws or time limits. The NPC Standing Committee, the State Council, the Supreme People’s Court, the Supreme People’s Procuratorate eventually amended several of the 1979 CPL provisions to extend the time limit but it did little in the name of due process.
The 1979 CPL favored the state far too much over the defense, detention, and arrest as well as the pre-trial and trial it also gave the police wide influence over the arrest and detention that lacked considerable scrutiny and review. Instead of a presumption of innocence, there is a presumption of guilt as the standard for trying cases, and since the accused were objects of punishment they didn’t really have many rights include access to an attorney, moreover the verdicts were almost always decided before the trial so it really is just a formality. These conditions have led to a lot of criticism because they have failed to adhere to international legal standards the presumption of innocence, due process, and right of counsel.
The plot by the party leaders to have a more justifiable criminal justice system and to limit the powers of the state in criminal proceedings as a strategy to gain legitimacy with the rest of the world. Members of the post-Deng leadership have increased their support of rule of law to justify their rule. People in the top brass have taken advantage of the “rule of law” card by promoting popular legislation and policies to gain legitimacy and political strength for their personnel gains and to boost the rep of their offices. Aside from the party’s complete monopoly on all coercion and force, one of the factors in figuring out who holds the power in the long term is who has the majority popular support. The passing leader Deng Xiaoping credited with most of the political reforms left many of the upper officials with an authority vacuum. So guess what happens next! Rampant corruption! Horray! The chaos inside of the NPC government has scarred the image of the communist party repeatedly, and instances of injustice and corruption in the criminal system, which had a negative effect on the communist party legitimacy since through the criminal justice system that allowed the state to take the liberty, property, and life from anyone they wanted.
The top bass’s war on crime and corruption have been used to help keep the party’s legitimacy up, but the attention focused on prosecuting criminals and innocents alike in the name of social stability had a negative effect of the reputation on the party’s world popularity. In the relentless war on crime and corruption they often neglected the rights given to citizens in the party’s 1982 constitution, this became a legitimacy problem later on for the leaders because their quest for legitimacy by getting rid of crime and corruption because all the not so fair trial “mistakes” which did some damage to the reputation even more.
Chinese officials and scholars having realized that their governments legal system was rubbish and wanted to revise the criminal procedure law. Discussion about human rights gained momentum in legal and academic circles during 1991, even after the crack down at Tiananmen square 2 year prior. The eventually released it’s grip on the reform talks concerning human rights in China, including the talks about the legislation that would protect the rights and interests of citizens.
That’s done for now moving on.
https://escholarship.org/content/qt5b79d58t/qt5b79d58t.pdf?t=n4owwd
pages 10 to 17
Want prof.
Check this out. In 2020 a Lawyer named Zhang Zhan, reporting on the early covid outbreak was sentenced to four years in prison on charges of harassment and provoking trouble, also in shanghai she was accused of spreading false information, giving interviews to foreign media, disrupting public peace. Here lawyer Zhang Keke confirmed the sentence but refused to give details a common sign of a partial gag order, he also stated that there would not by an appeal. She was arrested in may because of attempts on nation wide suppression and censorship to deflect criticism for the late response on the government’s part. Zhang reportedly went on hunger strike and had to be forced fed and is also said to be in poor health.
View for evidence.
Good article on law in China. Seems to be a paraphrase of the wiki. I was wondering specifically about due process, however, since we may be basing some New City on the Chinese system and it seems Jerry didn’t get his due-process rights. Can you find some resources on due process in China and what that looks like? Try keywords “due process China”. You’ll find journal resources (long, but high-quality) and shorter news or discussions (shorter, but lower-quality). You could also look into specific cases by using a phrase like “activist describes trial in Chinese courts” or something similar. Try different searches until you find what you’re looking for. I’m going to award 250 pts for this work and the rest when you’re done.
This journal article is advanced reading, but it really gets into it in detail. Bonus if you read it and pull out some important quotes you think would be good to use for the New City system.