The judicial system of the People's Republic of China has long been an undefined, ill-described aspect of Communist life in a society which has been largely shrouded in mystery for the first twenty-five years of its existence. My primary interest during a three-week visit, therefore, was to observe and make factual comparison of our criminal courts with theirs. I was excited and anxious to study their constitutional guarantees, their court dockets, their problems of evidence, rights of appeal, sentencing practices, and prison conditions. All of these observations, of course, were to be within the framework of my own concepts of our system of American criminal jurisprudence.
How wrong I was! How quickly I learned that the framework was useless, the concepts unrelated and the experience totally new!
To my amazement, I discovered that crime is simply not a problem in China. Lawyers (as advocates) are virtually unknown. Legally trained judges are so few that most people never see or hear of one.
In this vast country of more than 800 million people, the resolution of nearly all criminal incidents - and these will be described later - is accomplished not by formal judicial processes and a corps of legal elitists, but by the people themselves.
To understand the criminal justice process in Communist China, therefore, it is necessary that one is prepared to experience an altogether new approach to the subject of crime and to the treatment of the criminal offender.
Few members of the American legal profession have visited the People's Republic of China. Such visits were prohibited by our State Department prior to President Nixon's celebrated walk on the Great Wall of China in February, 1972. Since then, China's limited tourist accommodations, already greatly overtaxed by visitors from more friendly countries, have not expanded rapidly enough to cope with the greatly accelerated American tourists' requests. We were told that the 1975 quota of visas for Americans was only one thousand. These are generally restricted to applicants who have been active in their local U.S. - China Peoples' Friendship Association, and have thus acquired some factual knowledge of People's China, her problems, and her accomplishments.
While no one ever said as much, I strongly suspect that my position as a black judge in America aided acceptance of my visa application. I have since learned that as long ago as 1971, Premier Chou En-lai had expressed to a delegation of Concerned Asian Scholars his country's special desire to have "some black (American) friends" and other "minorities of the United States" come to China.
Later I was to observe huge illuminated billboards in Peking, Nanking and Shanghai quoting Chairman Mao on the "unity of the peoples of all the world" with special reference to the "Third World" peoples of Asia, Africa and Latin America. Other large illustrations prominently included Blacks dressed in African and American garb.
Of course, we Black Americans, like most African nationals, feel a special kinship with the Chinese people because of our own history of slavery and "emancipation." In many respects, our struggle for equality and recognition parallels that of the Chinese peasants and workers. We, too, have been the victims of "white domination and white colonialism" and we, too, are presently struggling to preserve and extend and protect our new-found freedoms from any attempt at "revisionism."
In my visa application I specified my desire to meet and talk with legally trained personnel, and to observe China's judicial system in operation. What I ultimately discovered was essentially what Edgar Snow had reported in his authoritative book, Red China Today; namely, that there are few magistrates and legal advocates, and there is a scarcity of formal judicial proceedings in the People's Republic of China. A foreign visitor, whether he be a lawyer or an ordinary tourist, is not likely to see a court or a trial, or even have an opportunity to converse with anyone who is especially knowledgeable about court proceedings.
I was fortunate, however, in two respects: I was able to meet and talk with several Americans who were long-time residents of China. One of these, Sidney Shapiro, is an American-born and American-trained lawyer who has lived in China and practiced law there for many years prior to the Liberation in 1949, and has remained in China ever since. He presently is an editorial assistant for China Pictorial. I was fortunate also in that we were privileged to have an extended conference with two members of the law faculty of the University of Peking, who graciously responded to a series of written questions prepared by me and presented to them several days in advance. Additionally, I continually put questions about crime and criminal procedures to our very competent and informative interpreters-guides and to the chairmen of the many revolutionary committees who spoke with us. All of them appeared to be most knowledgeable about their communities.
Despite diligent efforts to comply with my request, I did not visit a court nor did I have an opportunity to observe any legal proceeding. The inability to do so was because of a combination of factors: (a) "trials" are so few and so unexciting that it is not easy to ascertain on short notice when and where one s being held; (b) as a member of a group of lay tourists my contacts (except as noted above) were with lay people n the tourist service, and they are not especially familiar with courts and legal proceedings; and (c) the language barrier would require that I be assigned a legally-oriented interpreter-guide for my individual use.
MAO'S TEACHINGS AND THE LAW
It was the American attorney, Sidney Shapiro, who first informed me, in response to my initial question, that one could hardly expect to understand the judicial system of China unless he had first read and understood Chairman Mao's 1957 speech on "The Correct Handling of Contradictions Among the People." (He then presented me a copy.) That speech, he said, presents the basic philosophic framework for the resolution of all disputes - public and private - in the People's Republic of China today. Again, when I talked with the professors at the University of Peking Law School, they also, in the course of their responses to my questions, frequently referred to Chairman Mao's speech on "Contradictions."
In that speech, Chairman Mao divides all "social contradictions" (i.e., controversies or disputes) into two general classes - "those between ourselves and the enemy and those among the people themselves." In defining "the people" and "the enemy" he says:
"... at the present stage, the period of
building socialism, the classes, strata and
social groups which favor, support and
work for the cause of socialist construction
all come within the category of the people,
while the social forces and groups which re-
sist the socialist revolution and are hostile
to or sabotage socialist construction are all
enemies of the people."
To deal with the two general classes of "social contradictions," Mao said:
"The people's democratic dictatorship
uses two methods. Towards the enemy, it
uses the method of dictatorship, that is, for
as long a period of time as is necessary it
does not let them take part in political act-
ivities and compels them to obey the law
of the people's government and to engage
in labor and, through labor, transform them-
selves into new men. Toward the people,
on the contrary, it uses the method not of
compulsion but of democracy, that is, it
must necessarily let them take part in polit-
ical activities and does not compel them to
do this or that, but uses the method of de-
mocracy in educating and persuading
them. This education is self education with-
in the ranks of the people, and the basic
method of self education is criticism and
Chairman Mao's approach to what we would consider common acts requiring criminal prosecutorial action embodies instead the use of moral suasion and peer pressures. For most crimes, he recommends that the people themselves show the culprit the error of his ways. Rehabilitation then will follow if and when the person "on trial" understands the destructive social consequences of his errant behavior.
According to Chairman Mao, "... Marxists have always held that the cause of the proletariat must depend on the masses of the people and that communists must use the democratic method of persuasion and education when working among the laboring people and must on no account resort to commandism or coercion."
The new Chinese Constitution, adopted on January 17, 1975, writes these teachings of Chairman Mao into basic law. It acknowledges the two kinds of "contradictions" and the two classes of defendants: those who support and work actively for the fulfillment of the aims of the revolution, and those who oppose and intentionally engage in conduct inimical to the revolution; and it countenances a separate criminal procedure, a separate standard of justice, and a totally different character of disposition for each class.
Citizens are granted "freedom of speech, correspondence, the press, assembly, association, procession, demonstration and the freedom to strike, and enjoy freedom to believe in religion and freedom not to believe in religion and to propagate atheism."
The Constitution also provides that "The citizens' freedom of person and their homes shall be inviolable. No citizen may be arrested except by decision of a people's court or with the sanction of a public security organ."
HOW THE JUDICIAL SYSTEM WORKS
In the People's Republic of China two distinct procedural patterns are followed in the administration of criminal justice. The one reserved for conflicts involving "the enemies of the people" (which also includes serious crimes) nvolves "formal" proceedings, which are more in accord with the criminal justice system we in America apply in all cases. Here there would be a formal statement of charges, a trial before a professional tribunal, and, if convicted, some deprivation of freedom and or civil right. In short, this procedure involves coercion - the exercise of State power.
The other procedure is "informal." It s reserved for conflicts within the ranks of the people and it abjures the trappings of a trial or the use of coercion and force to resolve the matter. It involves conciliation, mediation, education, criticism and self-criticism and is comparable to our American voluntary arbitration or conciliation service. It is totally divorced from State officialdom.
Obviously, therefore, in a given situation of claimed wrongdoing of any kind, the first decision to be made in the Chinese judicial process is to decide if the situation presents a "contradiction" among the people or if it’s one that involves "the enemies of the people." Hence, all civil disputes and virtually all criminal cases are initially processed-and disposed of - "informally" as dictions" within the ranks of the people. In such cases, there is no court or court officialdom and no judgments, verdicts or sentences.
This "informal" process s conducted entirely by lay personnel who make up the "conciliation committees." These might be members from the production team (in rural areas) or the neighborhood council (in cities) or the factory or other unit in which the defendant is employed. In other words, the "masses" who are his neighbors and co-workers have sole responsibility for the handling of the matter.
The process consists of first, an investigation to ascertain the facts and assess blame. The proceedings are conducted "on the spot": a sort of neighborhood affair in a locale that is convenient and familiar to everyone, where everyone can have his or her say. Everything is received and evaluated, and everyone is heard (including the defendant) who has a contribution to make to the resolution of the issues. The aim is to find out what, in fact, was done, who did it, and, most importantly, why it was done.
Once blame is established and counter-revolutionary factors ruled out, next comes the effort at mediation and conciliation among the litigants in civil disputes, and in criminal cases, criticism, self-criticism and then the effort at re-education of the defendant. The efforts of the conciliation committee may be supplemented by calling upon members of the families of the interested parties for assistance in impressing upon the defendant the error of his ways, and how his wrongful conduct impedes the progress of his unit and the development of socialist reconstruction in China. If this effort is unavailing, the conciliation committee ultimately will seek official action and refer the facts and the recalcitrant party to the revolutionary committee (the governing body) of his neighborhood council, his employment unit, or his commune.
The aim of all of these efforts is not merely the ascertainment of blame or fault; but also is intended as a teaching experience - to indoctrinate or further indoctrinate both the litigants and the masses in Marxist-Leninist ideology in practice and make them conscious of the manner and the extent to which the particular wrongdoing has interfered, or tended to interfere, with socialist reconstruction.
Each case, therefore, is a matter of free, open and orderly discussion among the litigants or the defendant's peer group. If the effort at mediation, criticism, self-criticism and re-education is deemed by the conciliation committee to have been successful - that is, that the errant litigant or defendant fully understands, appreciates and acknowledges the error of his or her ways - that’s the end of the matter. He or she remains within the protection and the good graces of "the masses."
George W. Crockett, Jr. is a Detroit Recorder's Court Judge. This account of his visit to the People's Republic of China first appeared in Judicature, the journal of the American Judicature Society, for December 1975. (c) 1975, the American Judicature Society. In our next issue: how China 's courts treat serious crimes; the nature of crime in a socialist society.