Deng Xiaoping’s Legal Acumen
A bold call for human rights protection amid China’s tight political climate
Apologies in advance - this edition of the newsletter is not that newsworthy.
This past August marked the 120th anniversary of the birth of Deng Xiaoping, often called the “Architect of Modern China.” I had planned to write something sooner, but starting a new job kept pushing this piece to the back burner. Well, here we are.
Let’s begin with how the Communist Party of China (CPC) commemorates its late leaders. According to Xinhua, China’s state official newswire, the CPC held a meeting on Aug. 22 to mark Deng's 120th birth anniversary, during which “the Chinese President Xi Jinping delivered an important speech and lauded the ‘outstanding contributions’ of late leader Deng Xiaoping and urged advancing socialism with Chinese characteristics initiated by Deng.”
The reason behind such commemorations stems from a 1996 directive The Notice from the General Office of the CPC Central Committee and the General Office of the State Council on Holding Commemoration Activities for the Birthdays of Deceased Party and State Leaders 中共中央办公厅、国务院办公厅关于举办已故党和国家领导同志诞辰纪念活动的通知. It stipulates that such commemorations are to be held on the leaders' birthdays, rather than on the anniversaries of their passing.
These events are conducted in line with each leader’s historical significance. Here’s a quick breakdown:
Mao Zedong: Commemorations are held on the 10th, 50th, and 100th anniversaries of his birth. These events are centrally organized by the CPC Central Committee.
Founding Leaders: For major Party and state leaders who held core positions in Party history, such as Zhou Enlai, Liu Shaoqi, Zhu De, and Chen Yun, commemorations are held on the 10th, 50th, and 100th anniversaries. On the 10th anniversary, commemorative articles are published; relevant departments of the Central Committee hold symposiums with the participation of central leaders. On the 50th anniversary, the Central Committee hosts a symposium, with major leaders attending and delivering speeches. For the 100th anniversary, a grand commemorative event is held by the Central Committee, with Party and state leaders delivering keynote speeches."
Former National Leaders: For those who served as members of the Politburo Standing Committee, State President, Chairperson of the National People’s Congress, Premier, Chairperson of the CPPCC, Chairperson of the Central Military Commission, or Vice President, commemorations may be held on the 10th, 50th, and 100th anniversaries. On the 10th anniversary, articles are published. For the 50th, commemorations are held at their birthplace, and for the 100th, the Central Committee organizes a symposium.
Since the directive was issued in 1996 before Deng’s death, it lacks specific provisions for him. However, as the recognized core of the second generation of leadership, Deng’s commemorations are likely to follow the same scale as those for Mao Zedong.
Today’s newsletter highlights an article from the Deng Xiaoping Memorial Website, authored by Hao Tiechuan (郝铁川), titled Deng Xiaoping’s Legal Acumen (邓小平的法律素养). Hao, who holds a PhD in history from East China Normal University, previously served as the Director of the Department of Publicity, Culture, and Sports at the Hong Kong Liaison Office, and is now the Director of the Shanghai Research Institute of Culture and History.
*This is the homepage of the Deng Xiaoping Memorial Website, displaying the text:
The chief architect of China's socialist reform, opening-up, and modernization.
He made great contributions to the independence of the Chinese nation, the liberation of the people, and the birth of New China.
He made arduous explorations in the establishment, consolidation, and development of the socialist system in China.
He made immortal achievements in successfully pioneering the path of building socialism with Chinese characteristics.
In commemoration of the 120th anniversary of Comrade Deng Xiaoping's birth.
In his article, Hao details Deng’s crucial role in overseeing the revision of the 1982 Constitution of the People's Republic of China (八二宪法), the fourth and current constitution of the PRC. This landmark document shaped China's legal landscape, and the following excerpts offer a vivid glimpse into the deliberative process behind its creation.
邓小平的法律素养
Deng Xiaoping’s Legal Acumen
I would like to extend my gratitude to the late Professor Xu Chongde, who was involved in drafting China's 1954 and 1982 Constitutions. In his twilight years, he authored The History of Constitution of the People's Republic of China (中华人民共和国宪法史 , hereafter referred to as “The History”), a work that unveils obscure speeches of national leaders at the 1954 Constitution drafting conference. This provided us with valuable insight into their legal literacy, with one remark by Deng Xiaoping leaving a particularly strong impression:
I. Deng Xiaoping suggested replacing "all the people" with "all the citizens," demonstrating a strategic vision for legal development.
On May 27, 1954, during the second plenary meeting of the Constitution Drafting Committee, when discussing the concept of citizenship, Li Weihan stated, "The term 'citizen' in the Constitution encompasses all individuals with Chinese nationality." Deng Xiaoping then suggested, "It would be better to replace 'all the people' with 'all the citizens'." Liu Shaoqi added, "The term 'citizen公民' here includes those previously referred to as 'the people人民' and 'nationals国民.' Even landlords地主阶级分子 are considered citizens, though they are stripped of political rights. If we only use 'the people,' we cannot include those referred to as 'nationals'." （The History, p. 124)
"Citizen" is a legal term, while "people" is a political one. Given that the Constitution is a legal document, it should adopt the term "citizen." Although the Constitution cannot be entirely divorced from politics and inevitably affirms certain political outcomes, it must do so using constitutional thinking and terminology. The evolution of Western constitutions illustrates this point: initially, citizens were categorized as active or passive, and the principle of "equality before the law" was initially confined to judicial contexts, not legislative ones. Over time, however, Western constitutions embraced formal equality before both legislation and judiciary, making no legal distinction based on citizen status (of course, substantial equality before the law remains unachieved in Western constitutions). Therefore, Deng Xiaoping's suggestion to replace "all the people" with "all the citizens" reflects a forward-looking vision for legal development.
In the past, China labeled some individuals as landlords (地主) or rich peasants (富农) not merely out of a desire for retribution, but with the intention of transforming them into laborers in the new society. The decision of the Central People’s Government Administration Council on the classfication of rural classes, issued in 1950, stipulated that landlords who, after the completion of the land reform, fully obey the government’s decrees, work hard to engage in labor production or other business operations, without any reactionary behavior, have been approved by the township people’s congress and approved by the county people’s government for more than five years. According to the nature of the labor or business they are engaged in, change their landlord component to the component of laborers or other components. Rich peasants in the old liberated areas who have met the above conditions for three years after the completion of the land reform can also change their composition in the same way. Since Land Reform Movement began in 1950, by the time the 1954 Constitution was enacted, former landlords and rich peasants could generally be reclassified as laborers. Thus, Deng Xiaoping's suggestion to replace "all the people" with "all the citizens" was also based on practical considerations. Unfortunately, due to the subsequent intensification of class struggle mentality, these landlords and rich peasants did not have their composition changed as planned.
II. Deng insisted that the "autonomy" within a unitary state must be constrained by the Constitution and laws, stipulating that no actions may be taken without legal authorization.
On May 29, 1954, during the fourth meeting of the Constitution Drafting Committee, the discussion of Article 70, which states that "autonomous bodies of ethnic autonomous regions shall exercise their autonomy within the scope of authority stipulated by the Constitution and laws," sparked a concern from Long Yun. He remarked, "This clause, 'within the scope of authority stipulated by laws,' places many restrictions on autonomy, prohibiting actions not specified by law." Liu Shaoqi responded, "Should autonomy be subject to legal stipulations?" Ulanhu added, "It's better to have clear stipulations; managing without them would be difficult. In the case of Inner Mongolia, it is beneficial to have defined boundaries. Autonomy should not override fundamental laws." Dong Biwu noted, "Autonomy is inherently limited. The authority of the Autonomous Republics of the Soviet Union is not as extensive as those of the Union Republics. The Constitution already allows for the management of local finances, the organization of public security forces, and the formulation of autonomous regulations and special provisions. What rights remain beyond these?" Long Yun remarked, "If something is not stipulated, then it cannot be done." Deng Xiaoping responded, "The Constitution fully guarantees the rights of ethnic minorities; it is inconceivable that anything beyond the Constitution could be allowed. Demands for separation from China or joining another country are unacceptable; seeking special status and independence is equally impermissible. However, specific political, economic, and cultural rights are fully protected. If the current stipulations are inadequate, they can be amended in the future, but only through legal means." Chen Yun echoed this sentiment: "While autonomy exists, it is also limited and needs to be defined within the Constitution. For example, Inner Mongolia has autonomy, but if control over customs in Manzhouli, the forests within its borders, and the railways were entirely under Inner Mongolia's jurisdiction, it would pose significant challenges at the national level. Autonomy must align with overarching national principles." Long Yun then conceded, "Article 71 resolves this issue. I will not persist in my opinion." Li Weihan added, "There is another issue with ethnic regional autonomy: if ethnic minorities were to pursue autonomy in isolation, without the support of the state and the Han majority, many things would be impossible." (The History, Volume 1, p. 129)
Unlike the inherent or residual powers held by member states in a federal system, China operates under a unitary state structure. In this system, ethnic autonomous regions do not possess such powers; their autonomy is granted by the central government. The extent of this autonomy is determined by what the central government confers, and it can be legally revoked. Deng Xiaoping advocated for legally defined limits on the scope of autonomy, stating, "If the current stipulations are inadequate, they can be amended in the future, but only through legal means." This underscores the principle within a unitary state that local autonomy functions strictly within the legal framework - no actions may be taken without legal authorizatio
This legal philosophy of Deng Xiaoping was also evident during the drafting of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. He maintained that within the "One Country, Two Systems" framework, the "One Country" takes precedence over the "Two Systems," with socialism as the overarching system. The "high degree of autonomy" in the Hong Kong Special Administrative Region does not imply "complete autonomy," but rather coexists with the central government's necessary intervention rights. "The people of Hong Kong administering Hong Kong" specifically requires that governance is by patriots, not just any resident in Hong Kong.
III. Deng regarded the right to defense of the accused as a solemn right.
During the fourth meeting of the Constitution Drafting Committee on May 29, 1954, when discussing Article 69 of the draft Constitution, which stated, "Except in special circumstances as prescribed by law, all cases in the people’s courts shall be tried in public. The accused shall have the right to defense," a proposal was made to change "The accused shall have the right to defense" to "The accused shall have the right to obtain defense."
Chen Shutong argued, "I support keeping the original wording. The Soviet Union writes 'the defendant has the right to obtain defense,' and it even includes the word 'protection.' We don't have enough resources or lawyers, so it's better to maintain the original."
Liu Shaoqi added, "What if a defendant says they can't speak well, or can't express themselves clearly in court, and asks the court to find someone to speak on their behalf? Should we provide that? There might not always be a lawyer available."
Deng then said, "The original text seems to suggest that our defendants are only now being granted the right to defense. Writing 'the right to obtain defense' sounds more formal and dignified."
Liu Shaoqi continued, "There are indeed difficulties, but we can't just eliminate this right because of difficulties. The draft constitution will be made public for the world to see, and writing 'the right to obtain defense' would be more appropriate. What do you think, Elder Chen?"
Chen Shutong replied, "I’m not opposed to this phrasing, but I’m just worried it might be hard to implement."
Deng Xiaoping added, "Even if we can't find a lawyer, the defendant can still defend themselves, or find someone else to defend them, or the court can appoint someone to assist. It doesn’t necessarily have to be a lawyer." In the end, the committee agreed to change the wording to "the defendant has the right to obtain defense." (The History, Volume 1, p. 128-129)
Chen Shutong interpreted the right to defense as the act of hiring a lawyer to exercise it, whereas Deng Xiaoping regarded the right to defense as a solemn right that could be exercised by hiring a lawyer, by oneself, or by asking someone else to do so. One of the essential conditions for contemporary judicial fairness is the comprehensive respect and implementation of the right to defense. Recently, Professors such as Chen Guangzhong陈光中 and Fan Chongyi樊崇义 have written articles highlighting three major issues in China's criminal defense:
Insufficient criminal defense: In 50% to 70% of criminal trials, there is an absence of defense lawyers.
Substantive defense is lacking: Even when defense is provided, it has not yet reached a substantive level. Both substantive defense and procedural defense are incomplete or inadequate.
Legal aid is still in a difficult stage: Legal aid work faces challenges such as a shortage of personnel, funding, and experience. Moreover, ineffective assistance of counsel has not yet been established.
IV. Deng advocated that "temporary detention in emergency situations" should pay close attention to "protecting human rights," which differs from the practices during mass movements in the revolutionary period.
During the fourth meeting of the Constitution Drafting Committee on May 29, 1954, when discussing Article 81 of the draft Constitution, which stated, "The personal freedom of the citizens of the People's Republic of China shall not be violated. No citizen shall be arrested without the permission of the Supreme People's Court or the Procurator General. In emergency situations, temporary detention must be approved within three days; otherwise, the detained person shall be released," Huang Yanpei felt that "three days" was too long and asked, "Is there a precedent for setting a three-day limit in the constitutions of other countries?" Deng Xiaoping responded, "Albania is the precedent. Hungary has an even longer period, five days. By setting three days, we are being strict in protecting human rights." He continued, "In the past, we conducted several revolutionary movements, including land reform, the suppression of counter-revolutionaries, and the movements against the “three evils” of corruption, waste, and bureaucracy and against the “five evils” of bribery, tax evasion, theft of state property, cheating on government contracts, and stealing of economic information. Anyone who denies this is denying the revolution. Although there were mistakes made during these movements, the overthrow of the landlord class and counter-revolutionaries mainly depended on the revolutionary mass movements. Had this provision been in place at that time, the revolution would not have been possible at all." (The History, Volume 1, pp. 131-132)
It is particularly valuable that Deng Xiaoping linked the restrictions on citizens' personal freedom with "protecting human rights", considering that, until 1978, China’s newspapers were still criticizing "human rights" as a bourgeois slogan. It wasn't until the 1990s that the taboo on discussing "human rights" was finally broken. Deng also pointed out that past revolutionary mass movements relied mainly not on the rule of law but on the necessities of revolution. However, in our current era of peaceful development, it is essential to firmly safeguard human rights.
V. Deng believed it was important to remind state officials that if they violate citizens' rights, citizens have the right to seek compensation.
During the fourth meeting of the Constitutional Drafting Committee on May 29, 1954, when discussing Article 88 of the draft Constitution, which concerned citizens' right to file complaints, Chen Shutong suggested deleting the second sentence: "Citizens who suffer losses due to the infringement of their rights by state officials have the right to seek compensation." He argued that since citizens could file complaints, a ruling would naturally follow. However, Tian Jiaying disagreed, stating, "What harm is there in keeping this sentence? In fact, its inclusion serves as a warning to officials." Deng Xiaoping supported Tian's view, saying, "It's better to keep this sentence." And so it was decided. (The History, Volume 1, p. 132)
In a speech from the same period, Deng Xiaoping explicitly stated that after the Communist Party of China came into power, the Party was the most qualified and capable of making major mistakes. Thus, it was imperative to strengthen the supervision of the party through disciplinary, social and legal oversight. While "everyone is equal before the law," the law should primarily serve to constrain those wielding public power. The notion that "the rule of law primarily constrains public power" later appeared in the speeches of Party and state leaders in the 1990s.
VI. Deng emphasized the importance of distinguishing between "crimes in office" and " personal crimes."
During the drafting of the 1954 Constitution, Huang Yanpei once asked, "What if a Vice Premier breaks the law?" Deng Xiaoping responded, "If a Vice Premier breaks the law, the Procurator-General can bring the matter to the Standing Committee of the National People's Congress (NPC), and it will be up to the NPC Standing Committee to decide whether or not to arrest him/her." Liu Shaoqi added, "For instance, if a Vice Premier kills someone, the NPC Standing Committee can remove him/her from office, after which he/she would be treated as an ordinary citizen." Deng Xiaoping further clarified, "A Vice Premier's crimes can fall into two categories: crimes committed in office and personal crimes. Personal crimes should be handled as those of an ordinary citizen; it cannot be framed as a crime committed by a Vice Premier." (The History, Volume 1, p. 238)
When Deng Xiaoping made this statement, China had yet to establish a formal criminal law. Nevertheless, he was able to differentiate between crimes in office and personal crimes, demonstrating a deep understanding of law. Whether this legal acumen resulted from self-study or was influenced by his family background remains an open question. His father, Deng Shaochang, also known by his courtesy name Wenming, was born in 1886 during the Guangxu Emperor's reign and studied at the Chengdu Law and Politics School. Further research is needed to fully understand these connections.
The newsletter is written by Yuzhe He, the founder of Gen-Z Glimpse. The personal newsletter solely reflects his perspectives, NOT those of others.
If you spot any errors or have feedback, please don’t hesitate to respond or send your comments to Yuzhehere # hotmail DOT com.