Deng Xiaoping has always been more interested in Marx than in Montesquieu. Despite his student sojourn in France, Deng has repeatedly rejected the French political philosopher's theory of the separation of powers -- so influential in the United States and in other countries the People's Republic of China seeks to catch up with. Thus China lacks a judiciary that is independent of political authority, even though its constitution creates a contrary illusion. In China's courts, as in all of her other government institutions, "politics is in command."
Not only the Chinese people but also their Communist leaders have paid a high price for this system. The transitional figure Hua Guofeng, Chairman Mao Zedong's original successor, discovered this in 1979, when, prior to trial of the "Gang of Four," he assured the world that the Supreme People's Court would not sentence to death Mao's widow. Instead of being credited for a humane gesture, Hua was pilloried and mocked by Chinese reformers as well as foreign observers for usurping the role of the judiciary.
By choosing to continue with Communist Party control of the courts during the new era they brought to China in the 1980s, Deng and his colleagues guaranteed themselves some headaches they could have been spared. Dictating to judges is tempting, as any politician can testify, but it is also costly, as only dictators can confirm. One of its costs -- sometimes overlooked in analysis of totalitarian systems -- is that it saddles already overburdened political leaders with other important and contentious issues that might have been left to the judiciary.
Recent events in Beijing underscore this truth, for it is the highest party leaders and not the judges who must decide how to dispose of the cases of the advocates of democracy still in detention more than 18 months after the Tiananmen Square tragedy. The trials of some dissidents have just been concluded, but over 50 more will soon be dealt with, including the most prominent persons accused.
Undoubtedly, even Qiao Shi, member of the Politburo standing committee responsible for what the Chinese accurately call their "political-legal system," cannot himself decide the sensitive and complex questions involved. Convicting workers and unemployed persons who had committed acts of violence was an easy matter on which to gain agreement in the months immediately after Tiananmen. But bringing to trial well-known intellectuals and students for engaging in "counterrevolutionary propaganda" and similar verbal activity has proved to be more controversial for Deng & Co.
Some leaders, eager for formal vindication of their decision to allow the wanton use of force on June 4th, are pushing for the condemnation and harsh punishment of certain dissident intellectuals as the "black hands" behind a supposedly conspiratorial rebellion. Others, recognizing that such actions would compound the damage to their reputations at home and abroad, would like to drop the charges and get on with modernization. Many leaders in the middle would welcome a face-saving may to get this hot potato off the leadership's hands.
An independent, impartial court system would provide the way out, as it does in bourgeois countries. As things stand, however, China's leaders have had to debate not only who will be tried, which charges will be alleged and what the sentences will be, but also other thorny questions. Will the accused be allowed to select their own defense counsel? Will counsel be permitted to make a genuine defense and given the time and facilities to prepare? Will the trials be open to the public as required by law? Will the press, including foreign journalists, be allowed to attend and report on the proceedings? And will China for the first time grant, as many other repressive regimes have done, the requests of international human rights organizations to send representatives to monitor the proceedings?
Thus far the answer appears to be no to all these questions, but they must be provoking great controversy among an elite that was already badly fractured over Tiananmen and its consequences and that has been surprised at the extent of foreign concern about the trials despite the diversion caused by Iraq and the accompanying relaxation against China. Most of this time-consuming, enervating divisiveness could have been avoided if China, instead of importing the Marxist model of the judiciary from Moscow, had more carefully considered the advantages of the separation of powers. If Deng is too old and set in his ways to reread Montesquieu, surely some younger colleagues may wish to rummage around in Beijing's still tightly controlled libraries to find a copy.
The writer, a visiting professor of law at New York University, has long studied the state of law in China and has advised U.S. corporations operating there.