Cambridge, Massachusetts — An expert on Chinese law recalls the American joke that the "gang of four" trials had been delayed . . . "to give China time to pull all the judges through law school."
Too generous, says Prof. Jerome Alan Cohen of Harvard University, not long back from an extensive visit to China.
Seven of the more than 30 "judges" who sat on the special gang of four tribunals had no legal education at all, he points out. They were special assessors brought in by the Chinese leadership to express the people's condemnation of the Cultural REvolution.
Nonetheless, the professor insisted at an address here, the two bribunals represent a breakthrough for the Chinese.
After decades of Chinese ambivalence toward ideals of justice recognized in the West, the trials seem to represent an attempt to come to grips with the vast social grievance of the Cultural Revolution by means of a growing sense of order under law. The chief defendant, Mao Tse-tung's widow Jiang Qing, was even allowed to be seen differing vehemently from the government.
The tribunals were also a compromise, Professor Cohen says. The present Chinese leaders had a variety of choices open to them.
The accused could have been dealt with summarily without a trial at all. Or there could have been Roman-style amphitheater trials. Or there could have been a public purge like those in the Soviet Union in the 1930s, with the defendants under psychological or physical pressure to confess -- although this might have shown up on television.
Ideally, Professor Cohen suggests, the Chinese leaders could have opted for a regular trial under their new (1979) criminal code. But this would have enabled the accused to make damaging allegations against the late Chairman Mao and link them to today's leadership.
Hence the compromise: tribunals with strong political overtones but a distinctly visible basis in law.
With many of the judges being Communist Party members, Professor Cohen concedes, party political views will no- doubt influence the tribunals' eventual decisions. In addition, much of the trial scenario was staged; judges harangued the accused; defense lawyers appeared constrained; the audiences were from the elite; television and other coverage was carefully packaged. Chinese intellectuals were disturbed that the trials did, in fact, depart from the 1979 code.
But, the professor argues, the positive educative value of seeing someone vigorously differ from the government is immense.
Jiang qing's poignant, apparently artless question, when asked whether she would have a lawyer -- "What does a lawyer do?" -- led to an extensive answer about her right to defense viewed by tens of millions of Chinese on television. And later she was seen being dragged from the court shouting, "To rebel is justified!"
The enormity of the Cultural Revolution has been underestimated in the West, Professor Cohen observes. It included murders, suicides, loss of jobs, breakup of families.
He suggests that, like the Nuremberg trials, held in the wake of World War II to channel a felt need for justice, the Peking affair in a sense could be called a "victors' trial." but, perhaps again like Nuremberg, the gang of four tribunals seem also to exemplify an overarching desire that certain minimum standards of fairness be observed.
"The Cultural Revolution gave us a better legal education than Harvard Law School could have," one Chinese told Professor Cohen.
Suppressed in 1957 and 1958, the legal profession has been revived. Soviet-style collectives or 'legal advisers' offices" emerged briefly in the mid-1950s (all private legal practice had been banned in 1949). But these collectives themselves had been booted out in a campaign against "rightists."
Now more than 250 of these collectives have sprung up again. The lawyers' job is to represent the state and private parties in civil and criminal court cases and assist in mediation, arbitration, and the drafting of documents. A law passed in 1980 recognizes lawyers not as members of a liberal profession but as state legal workers, Professors Cohen notes in a recent issue of the American Bar Association Journal.
The putting down of the legal profession in 1957 was "a way station en route to the lawlessness of the Cultural Revolution," the professor concludes in his article.
He believes it is too early to predict the ultimate significance of all this new emphasis on law -- the State Constitution of 1978, criminal codes and judiciary laws in 1979, the 1980 regulations on the legal profession, and the gang of four trial.
But in a nation of 1 billion people -- almost one-quarter of humanity, the largest legal jurisdiction the world has ever known -- it will be wel l worth watching.