When China emerged from the Cultural Revolution and set off on its path of “reform and opening," the country’s judicial system was enlisted to address many of the politically motivated judgments that had been handed down during the Mao era. Courts throughout the country overturned verdicts against former “counterrevolutionaries,” clearing away their status as “enemies of the people.”
This effort took place as China worked to rebuild its shattered legal institutions and put a new legal framework in place that would help to reduce some of the arbitrariness and injustice that had characterized the preceding era. Notably, a new Criminal Law and Criminal Procedure Law took effect on January 1, 1980. Counterrevolutionary crime continued to be punished, but punishment would henceforth be handed down in accordance with laws and would follow prescribed legal procedures.
Of course, not everyone could benefit from the political rehabilitation of past political crimes. Those associated with the “Gang of Four,” pinned with blame for the violence and destruction of the Cultural Revolution and deemed to oppose the Communist Party of China and its leaders, were among the first "counterrevolutionaries" sentenced in accordance with the new laws. It didn’t matter much that most of them had been sitting in jail for years without access to any legal counsel or even anticipation of any formal legal proceeding. And though the courts that handed down judgments were now technically bound to do so “in accordance with the law,” the law was still primarily an instrument of the state’s political power that offered defendants little as far as protection of their rights was concerned.
Lingering Stigma: Counterrevolutionary Incitement
Concern for wrongful convictions and miscarriages of justice might lead one to take another look at some of these cases from the early 1980s. One example of residual injustice from this period recently came to light via Liu Xiaoyuan, a Beijing-based criminal defense lawyer who has been actively involved in rights-protection cases. Liu recently blogged about being contacted by an 80-year-old man from Henan who has spent most of the past four decades trying to get his elder brother’s 1980 conviction for “counterrevolutionary incitement” overturned.
Ren Ruixiang (任瑞祥) was 17 years old when the People’s Republic of China was founded in 1949. Though he came from a “rich peasant” background, his middle-school education made him a valuable asset for building a “New China.” He served as a local government cadre in the city of Luoyang and joined the Communist Youth League.
But Ren’s “bad class background” would eventually catch up with him. In 1959, in the fevered final months of the Anti-Rightist Movement, he was accused of having concealed his membership in a Nationalist Party youth organization and stripped of his position. Most likely he was also sent for re-education. He would eventually be transferred to Mianchi County, where he spent the tumultuous years of the Cultural Revolution labelled as a “bad element.”
At the end of the Cultural Revolution, local authorities accused Ren of having been a follower of the “Gang of Four” and sent him for compulsory “re-education” in what was euphemistically known as a “study session” (xuexi ban). During his time there, in December 1977, Ren allegedly jotted down a short piece of counterrevolutionary verse in a notebook and then shouted it aloud. The verse read:
"China’s troubles aren’t through—
Bandit Hua* has risen again!
My fellow Chinese brothers—
You must eliminate Bandit Hua!"
Ren was arrested and sent to the county detention center in January 1978, where he was alleged to have continued shouting counterrevolutionary slogans calling for the ouster of central party leaders, including Hua Guofeng, Ye Jianying, and Deng Xiaoping. China’s procuratorate system had not yet been restored after the Cultural Revolution, so the county public security authorities sent the case to the local court for prosecution the following month. But no trial was held and Ren spent the next two years in a detention center.
At the time, China had few trained legal professionals. Therefore, it's surprising to learn that Ren Ruixiang was able to be represented by a defense lawyer named Bo Xiping. When Bo went to meet with his client at the detention center, he found his behavior odd and reported this to the court. As a result, the court arranged for Ren Ruixiang to be evaluated by the Kaifeng Psychiatric Hospital. The hospital’s assessment report stated that Ren Ruixiang’s mental state was fine and that he had been feigning illness to avoid criminal responsibility.
Imprisonment & Release
China’s new Criminal Law and Criminal Procedure Law took effect just days after the completion of Ren’s psychiatric evaluation. The Mianchi County People’s Court proceeded to find Ren Ruixiang guilty of “counterrevolutionary incitement” and sentenced him to seven years in prison. According to Ren’s brother, however, the court held no trial hearing and did not notify the defense lawyer of Ren’s conviction. By the time anyone knew what had happened, the deadline for appeal had already passed.
Ren was sent to a “reform through labor” camp at a glue factory in the city of Jiaozuo. Doubts about his mental state persisted, and family members again called upon Bo Xiping to file a petition for post-conviction relief. Bo also met with Ren Ruixiang and was shocked to hear the detainee insist that he “spoke with Chairman Mao every night.”
Bo reviewed Ren’s medical file at the Kaifeng Psychiatric Hospital and found in the entrusted letter that the court had sent the hospital several statements detailing Ren’s past and his alleged “counterrevolutionary speech”. Bo considered the court’s behavior to be prejudicial and noted that the hospital had not employed modern diagnostic tests, such as an EEG, in assessing whether Ren was mentally ill and instead conducted only blood and urine tests.
By this time Bo had become a senior legal figure in the province, and doubts about the case had begun to reach other senior provincial and central officials. In 1983, the Jiaozuo People’s Procuratorate arranged for Ren Ruixiang to undergo another psychiatric evaluation at the provincial psychiatric hospital in Xinxiang. This time, doctors performed an EEG and found abnormalities in his frontal cortex. They also reported that Ren Ruixiang frequently suffered from auditory hallucinations in which voices told him to say or do certain things. They diagnosed Ren as suffering from paranoid schizophrenia, and he was soon released on medical parole.
Of course, Ren Ruixiang’s release is not the end of the story. His brother told Liu Xiaoyuan that the family’s limited resources meant that Ren was never able to receive the medical treatment needed for his illness. He has spent most of the past four decades unsuccessfully trying to clear his brother's name. Now at the age of 85, Ren’s mental illness is unaddressed and the stigma of his conviction for “counterrevolution” remains.
In the early days of “reform and opening”, courts across the nation overturned a number of counterrevolution cases handed down at a time when China’s criminal justice system did not operate under the boundaries of law. Ren's case was decided after the Gang of Four was purged from leadership and his "reactionary" verse was cited as evidence of him being a remnant of the cadre population. The highly political nature of the case barred him from exoneration, or pingfan, that allowed many of the former "counterrevolutionaries" to escape stigma.
There was no hope of a legal remedy until February 2012 when the Sanmenxia Intermediate People's Court offered to pay Ren monthly subsidies so long as his family acknowledged his involvement with the Gang. Ren's brother nevertheless rejected the offer and insists that Ren should never have been criminally responsible as he became mentally ill during his incarceration in the “study session” back in 1977. The family continued to file petitions until 2011, but the Mianchi County People’s Court formally rejected the family’s petition and upheld its original findings and the psychiatric assessment that Ren was “mentally sound” at the time of committing the crimes and had “feigned illness.”
Setting aside the question of Ren Ruixiang’s mental illness, as Liu Xiaoyuan points out there are several substantive and procedural issues that arise because of the way that Ren’s case straddles a moment in history when Chinese criminal justice began to be implemented “in accordance with the law.” On the substantive side, it is unclear whether Ren’s statements against central government leaders amounted to “incitement to overthrow the dictatorship of the proletariat and the socialist system,” the standard under the Criminal Law at the time. And given the restrictive space (a “re-education” class) and the limited audience that heard Ren’s comments, the decision to classify his speech as a “serious offense” appears arbitrary. These objections about the arbitrary and harsh criminalization of political speech in China persist to the current day, however, as “counterrevolutionary incitement” is replaced with "inciting subversion" and "inciting splittism," both crimes of “endangering state security.”
Ren’s trial also seems to have violated several procedural protections that should have come into force with the new legal provisions. Under the Criminal Law, Ren’s case should have been handled by an intermediate court and not by the Mianchi County People’s Court. (In the county court’s 2011 appeal decision, it states that the Luoyang Prefecture Intermediate Court had granted it jurisdiction to try the case on its behalf, but no mention of this was made in the original court document.) The case should have been tried in open court, with Ren Ruixiang’s lawyer there to represent him. And by 1980 the prosecution should have been handled by the county procuratorate, but the record only shows that the case had been sent for prosecution by the county public security bureau.
There was nothing magical about the “legalization” of criminal justice in 1980 that would make Ren Ruixiang’s case any less deserving of re-evaluation than the cases that came before. But by the same token, a decision to re-evaluate a case like Ren’s could open the door for re-evaluation of other counterrevolution convictions that came afterwards, say in 1983 or 1989.
Under Xi Jinping, China’s judicial system has made a point of its efforts to prevent and remedy wrongful convictions, and there have been some notable instances in which longstanding convictions have been overturned. But the victims of past political persecutions are clearly not meant to be included among the cases subject for review. Though willing, on occasion, to acknowledge the contribution of police abuse and procedural violations to miscarriages of justice in “ordinary” criminal cases involving rape and homicide, it is easier to pretend that these same things don’t happen in cases involving purported threats to the security of the regime. Perhaps it’s worth asking those who want to strengthen the credibility and legitimacy of China’s judiciary whether a system that maintains this sort of double standard and blindness to past injustice can ever be considered “fair.”
* "Bandit Hua" likely was referring to the then Chairman Hua Guofeng.