Modern Chinese Legal Reform: New Perspectives

3. The Dragon’s Tale: China’s Efforts toward the Rule of Law

3 The Dragon’s Tale China’s Efforts toward the Rule of Law Xiaobing Li China’s current constitution, which incorporated important amendments between 1978 and 2004, has finally addressed citizens’ liberties and has institutionalized these rights as a component of the nation’s judicial system that was created with the founding of the People’s Republic of China (PRC) in 1949. Since the creation of the PRC, China has promulgated four state constitutions, in 1954, 1975, 1978, and 1982. The current constitution was adopted by the Fifth National People’s Congress (NPC) on December 4, 1982, and it underwent important changes and revisions in 1988, 1993, 1999, and 2004. Even though some civil liberties and legal codes are provided by the constitution, many others have not been enacted. This chapter provides a historical overview of the PRC constitutional reform and identifies some contradictions in government policy making in the promotion of legal reforms.1 It suggests that legal reform in China has failed to deliver on its promises and thus that there is a gap between the promise of reform and the reality of legal practice. In the past sixty years the Chinese constitution has undergone periods of acceptance, rejection, and rewriting. In 1949, in preparation for the emergence of a new Communist state, the CCP leadership named the country the “People’s Republic of China” in order to differentiate it from the old Nationalist state, the Republic of China (ROC), established in 1912. The PRC, however, did not empower its citizens or protect their civil rights and liberties. During its early years, the new China followed the Soviet 84   Xiaobing Li model and limited people’s rights by breaking with tradition and expanding state power through political campaigns and class struggle. After the first constitution was promulgated in 1954, it encountered challenges from radical political movements during the 1960s. After the Sino-Soviet split in the 1960s, the Chinese government failed to promote civil liberties and to protect individual rights. Until 1978, Chinese society was centered on a unitary party-state that maintained complete control of all social resources. The Chinese Communist Party Center utilized the government, including courts, law enforcement, and the legal system, to serve its Communist political agenda. The constitution of the three decades preceding 1978 was merely a history of the CCP’s experiment in political establishment and institutional dominance, which created many obstacles to serious legal reforms at the end of the century. Deng’s Reform and New Constitutions In 1978, after his third return to the Party Center, Deng Xiaoping led the second generation of the CCP. He became focused on putting China on the road to prosperity by deprogramming Mao’s system and convincing Chinese citizens, after ten years of turmoil and Cultural Revolution, that economic reconstruction should become their first priority. Deng defended a market economy by stating that it did not contradict socialism but was simply an economic tool to serve an ideological cause. In Deng’s system, Marxism and Mao’s Thought became the means to support reform rather than a goal to attain. To start his reform movement, Deng urged the NPC to develop a new constitution. On March 5, 1978, at the Plenary Session of the Fifth NPC, the third PRC constitution was adopted. It doubled its articles from thirty to sixty and contained a new preamble. Two years after the downfall of the Maoists, such as the Gang of Four, the new constitution restored courts and procuratorates. It also reinstated some citizens’ rights, such as the right to strike. For the first time, the new constitution declared that Taiwan is part of China and must be liberated by the PRC, thus finishing the immense task of reunifying the motherland. In 1979 the government added an amendment that dropped the liberation stance and opted rather for peaceful reunification. Since the 1978 constitution was adopted just two years after the Cultural Revolution, it carried radical terms, such as “Revolutionary Commit- The Dragon’s Tale  85 tees.” It required support for the leadership of the CCP, and participation in the socialist system remained a component of citizens’ duties. The new constitution did not create legal norms, and noncompliance with the document ’s provisions became a common occurrence. For example, cadres and law enforcers still acted extralegally. More than 10,000 cases of violations of personal rights, especially illegal search and detention, extortion, and confession by torture...