1200 words and three scholarly references

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INTRODUCTION

ENGLAND is a small island country situated off the northern coast of France. Throughout its history, the country has been referred to as England, Great Britain, and the United Kingdom. The official name changes occurred as a result of England’s political union with its territorial neighbors. For example, in 1707, England and Wales united with Scotland. This geographic alliance became known as Great Britain. When the southern counties of Ireland formed the Irish Free State in 1922, the official name of Britain changed again—this time to the United Kingdom of Great Britain and Northern Ireland.

In this chapter, we are concerned only with the geographical area known as England and Wales. The reasons for this are quite simple. Scotland is not a common law country; its criminal justice system consists of a mixture of common and civil law. This was a result of its political association with France in the sixteenth and seventeenth centuries. Scotland retained some of the legal characteristics that are indigenous to civil law countries such as France. Northern Ireland is not included in this study as a result of the problems that exist between the Protestant and Catholic factions of that country. The serious nature of these problems, although they are beginning to be resolved, has caused the criminal justice system to be altered somewhat from the common law system that exists in England and Wales.

England and Wales encompass an area of 58,350 square miles, which is a little larger than the state of Michigan (see Figure 1.1). Many of the roughly 57 million inhabitants live in the highly industrialized cities of the country. Although England no longer retains the industrial supremacy it once possessed, the country continues to be a world leader in the manufacture of heavy machinery. Agriculture, fishing, and oil are some of England’s other important industries. The legacy that the people of England have given the rest of the world is significant and indeed remarkable. The English have made major contributions in science, philosophy, literature, and the arts, but their most important and striking contribution to the historical evolution of civilization has been the creation of the common law and the development of parliamentary democracy.

GOVERNMENT The foundation for England’s political and legal institutions was established between the eleventh and fourteenth centuries. It was at this time that the monarchy negotiated several compromises with the nobility and, in the process, asserted its central authority. Following the English Civil War, which occurred during the first half of the seventeenth century, the modern basis for the country’s political institutions was established. The power of the monarchy was curtailed, the authority of the House of Commons was secured, and the emergence of political parties was established. Efforts at further reform and modernization were completed during the nineteenth century.

As the country prepared to enter the twenty-first century, it embarked upon an intense period of government reform. What is particularly striking about these reform efforts is the fact that much of it is devoted to significant constitutional issues. The adoption of these initiatives is designed to improve the effectiveness and efficiency of democratic government.

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Dyfed

Powys

West Glamorgan

Mid Glamorgan

Gwent

South Glamorgan

Clwyd

Gwynedd

Anglesey

WALES Shropshire

LONDON

Cornwall

Devon

Somerset

Avon

Isle of Wight

Dorset

Hampshire

Surrey Berkshire

Oxfordshire Gloucestershire

Greater London

Hertfordshire

Wiltshire

W. Sussex E. Sussex

Kent

Essex

Suffolk

Norfolk

CambridgeshireNorth- hamptonshire

Lincolnshire

Cumbria

North Yorkshire

Humberside

Nottinghamshire

Lancashire

Merseyside

Durham

Tyne & Wear

Cleveland

North- umberland

Leicestershire

Hereford & Worcester

West Midlands

Warwickshire

Bedfordshire Bucking- hamshire

Staffordshire

Cheshire Derbyshire

South Yorkshire

West Yorkshire

Greater Manchester

ENGLAND

FIGURE 1.1 | England Map courtesy of Bruce Jones Design Inc.

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While it is far too early to assess the impact that these reforms will have on governance, one consequence is clear: The role and power of some units of the central government have shifted.

The Constitution

Many countries throughout the world have a written document called a constitution in which the political and legal beliefs of the country are expressed. England does not have this type of constitution; it has been characterized as having an unwritten or, more appropriately, an uncodified constitution. The British constitution is a blend of statutory law, precedent, and tradition that dates back to the time of King Henry I (1100). A large part of English constitutional law is based on statutes passed in Parliament. Statutory law is an important factor in the creation of this kind of “organic” constitution. This is best illustrated by citing some of the significant statutes that were instrumental in developing British constitutional principles. These, in turn, have had a profound impact on the creation of written constitutions in other countries.

Magna Carta

The first document that carried with it this kind of significance was Magna Carta. In 1215, King John was forced by English nobles to sign this charter, which was an expression of rights and privileges of the upper class in medieval England. The charter consisted of 62 chapters or issues identified by the nobles. Several of these address what we would consider basic concerns for the administration of justice and illustrate early principles that today are central legal values associated with the rule of law. For example, chapter 38 noted: “In the future no bailiff shall upon his own unsupported accusation put any man to trial without producing credible witnesses to the truth of the accusation.” Chapter 40 proclaimed: “To no one will we sell, to none will we deny or delay, right to justice.” And chapter 45 announced: “We will appoint as justiciaries, constables, sheriffs or bailiffs only such men as know the law of the land and will keep it well.”

Chapter 39 was the most important and famous of these chapters, and is particularly pertinent to criminal justice. It stated:

No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.

For a number of years, some of the chapters in Magna Carta were misinterpreted. For example, chapter 39 was described as originating trial by jury and the writ of habeas corpus, but both assumptions are false. To the twenty-first-century reader, the real value of Magna Carta is that it is the first attempt to explain in legal terms the germ of the idea of government by a constitutional process.

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The Bill of Rights

Another important historical document is the statute known as the Bill of Rights. Before Parliament offered the English crown to William III and Mary II in 1688, it required their acquiescence to principles that became known as the Bill of Rights. Among the principles that appeared in the statute were:

• Parliament should meet frequently to redress grievances and pass legislation. • Members of Parliament should be elected freely. • Freedom of speech should be assured during the proceedings of Parliament. • The Crown cannot suspend or create law without the consent of Parliament. • Excessive bail or fines should not be imposed nor cruel and unusual punishments

permitted.

The principal significance of this statute was that it established a clear foundation on which to build a modern constitution.

The Act of Settlement

The Act of Settlement of 1700 was another statute that proved beneficial in establishing the modern constitution. One of the most important provisions of this act was the recognition that judges should hold office only during good behavior and could be removed only with the consent of Parliament. These statutes, along with others, clearly stated that the monarch must govern by and through Parliament. Since the seventeenth century, there have been other significant statutes passed in Parliament that have in some way altered the British constitution. Unfortunately, they are too numerous to list within the confines of this text. These examples provide the reader with a sense of how some basic constitutional principles were incrementally introduced, which usually coincided with Parliament enhancing its authority.

The Human Rights Act

As mentioned earlier, the government has embarked upon an intense period of reform that has some important constitutional implications. One of the most significant of these initiatives was the passage of the Human Rights Act (1998). Although this legislation received the royal assent in 1998, all of the sections to the act were not in force until October 2000. The significance of this legislation is that it enables violations of the provisions of the European Convention to be adjudicated in English courts.

The European Convention on Human Rights was ratified by the United Kingdom in 1951, but it was not incorporated into domestic law. Nevertheless, the country has been bound by its terms and court judgments under international law. The Convention is similar to a written constitution, like the Constitution of the United States, in that it is a listing of fundamental principles associated with a democratic form of government. The Convention consists of a series of articles that address such rights and freedoms as the right to life;

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prohibition of torture; prohibition of slavery and forced labor; right to liberty and security; right to a fair trial; no punishment without law; right to respect for private and family life; freedom of thought, conscience, and religion; freedom of expression; freedom of assembly and association; right to marry; prohibition of discrimination; restrictions on political activity of aliens; prohibition of abuse of rights; limitation on use of restrictions on rights; protection of property; right to education; right to free elections; abolition of the death penalty; and death penalty in time of war.

In 1966, citizens of the United Kingdom were empowered to petition the European Court on Human Rights, which is based in Strasbourg (France), if they believed one of their aforementioned rights had been violated by the government or an agent of the government. Unfortunately, such an appeal was costly to the petitioner, because legal aid was not available and the process took a good deal of time in light of various court delays. Five years has often been cited as not being an uncommon length of time for a case to work its way through the court. Since the enactment of the Human Rights Act (1998), as a significant feature in domestic law, citizens of the United Kingdom can now initially petition an English court to adjudicate allegations of various abuses associated with human rights.

Many scholars view the Human Rights Act (1998) as a new chapter in the evolution of English constitutional law, because all public authorities now have a duty to comply with the Convention on Human Rights (Wadham and Mountfield, 2000). It is important, however, to note the distinction between a statutory and a constitutional duty. Most European countries adopted the Convention as part of their fundamental or basic law. This kind of incorporation enables the courts of a country to rule that a national law is incompatible with the Convention. This type of adoption did not occur in the United Kingdom because the English judiciary does not have the authority to overturn parliamentary decisions, that is, to declare a law unconstitutional. Granting the judiciary that kind of power would be a rejection of the idea of parliamentary sovereignty.

The Human Rights Act (1998) does address the issue of English law being incompatible with rights spelled out in the Convention. According to Sections 3 and 4 of the act, English courts can issue a declaration of incompatibility. This enables courts to indicate to the government that remedial action should be taken to correct that portion of a domestic law that is not in compliance with the fundamental democratic principles represented in the Convention. Thus, although English courts do not have the power to override the authority of Parliament, the role of the judiciary has been enhanced considerably by this legislation. The judiciary has been given the authority to encourage both the executive and legislature to take corrective action when domestic legislation is not in compliance with human rights provisions.

It should be noted that there are derogation statements in both the Human Rights Act, Section 1(2), “[t]hose Articles are to have effect for the purpose of this Act subject to any designated derogation or reservation,” and The European Convention on Human Rights, Article 15, “[i]n time of war or other public emergency threatening the life of the nation.” The issuance of a derogation order is of particular relevance in recent years as a result of the international concern over terrorism. For example, the British government derogated

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from Article 5 of the Convention, which deals with a person’s right to liberty and security, specifically as it relates to being arrested or detained by the police. This was necessary because parliament passed the Anti-Terrorism, Crime and Security Act (2001), which permits the detention of suspected terrorists for extended periods of time that would not be permitted under a typical criminal investigation.

The reader should also be cognizant of some other characteristics of the British constitution. First, Britain is a unitary country and not a federated state. Therefore, Parliament is supreme over the entire United Kingdom. Although this principle remains in place, it should be pointed out that as part of the constitutional reform effort, devolution has been granted to Scotland and Wales. In 1999, representatives were elected to the newly established Scottish Parliament and Welsh Assembly. Second, Parliament exercises supreme legal power in Britain. As a result, no English court can declare an act of Parliament unconstitutional. The limitations imposed on the authority of the courts in the Human Rights Act (1998) illustrate the importance of this principle to English jurisprudence. Finally, there is a fusion of powers in Britain, rather than a separation of powers as is the case in the United States. Both the executive and legislative branches of government are found in Parliament. Until relatively recently, the highest court in the land, the Appellate Committee of the House of Lords, was also situated in Parliament. With the passage of the Constitutional Reform Act (2005), however, the Supreme Court of the United Kingdom was created to replace the Appellate Committee and became operational in October 2009.

The passage of the Human Rights Act (1998), House of Lords Act (1999), and the Constitutional Reform Act (2005) are illustrations of the “organic” nature of the British constitution. Moreover, the British have been viewed for a long time as a rule-of-law-based country. These statutes, each in their own distinct way, enhance that position even further.

Parliament

The British government has operated under the constitutional principle that the country should be governed by a fused power rather than a separated one. Parliament provides that leadership. It consists of three parts: the monarch, the House of Lords, and the House of Commons.

The Monarch

The role of the monarch in Parliament has been declining for almost 300 years. The reason for this reduction in power is constitutionally and politically related to Britain’s establishment of a government based on democratic principles. Today, the monarch’s importance is symbolic; it represents the unity of the country. For example, all statutes passed in Parliament are carried out in the monarch’s name. Despite a loss of power, the monarch legally retains some authority. The monarch convenes Parliament after an election and dissolves Parliament when an election is required. The monarch calls for the leader of the political party who was victorious in the election campaign to form a government—or, more accurately, an administration for the government.

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The House of Lords

Like the monarchy, the power of the House of Lords has diminished considerably. The historical roots of this body are almost as ancient as the monarchy itself. Early English kings traditionally had a great council that consisted of a group of nobles who advised the king on domestic and foreign affairs. The House of Lords is the political descendant of the great council and is considered to be the upper house of Parliament. Its authority has declined, especially during the past 100 years, because the idea of popular democracy is theoretically at cross-purposes with such an unrepresentative element in government.

The House of Lords performs several duties. Until 2009, it was the highest court of appeal in the country, but when it sat as a court, only the lords of appeal in ordinary, also referred to as law lords, took part in the proceedings. The House does a considerable amount of committee work; that is, it examines and revises legislation proposed in the House of Commons. It has been suggested that the House of Commons benefits from this because it has restrictions placed on its time for scrutinizing legislation. The Lords’ most contro - versial power is the constitutional power to delay the enactment of legislation passed in the House of Commons. With the exception of budget bills, which are the sole prerogative of the House of Commons, the House of Lords may delay the enactment into law of any public bill passed in the House of Commons. This delay cannot exceed one year; if it does, the bill becomes law without the House of Lords’ assent.

While the upper House of Parliament continues to provide a valuable service to the country, the composition of its membership changed with the passage of the House of Lords Act (1999). This was another piece of reform legislation that was designed to reduce the number of hereditary peers sitting in the House. The objective was to eliminate a political anachronism from a governmental process that is based on democratic principles.

To understand the significance of the House of Lords Act (1999), it is useful to consider the composition of the House before the passage of this legislation. The House of Lords was composed of approximately 1,200 members who fell into one of three categories. First, there was a special group that consisted of the archbishops of York and Canterbury; the bishops of London, Durham, and Winchester; and 21 senior bishops of the Church of England. Also included in this special category were the law lords, who were responsible for performing judicial duties for the House, which was the court of highest appeal. Second, the group of hereditary peers made up the majority in the House of Lords, consisting of about 800 members. Although some of these people were very capable, they did not hold their seat in the House because of their ability to deal with legislative matters. Rather, they were members because they held the noble rank of duke, marquess, earl, viscount, or baron—a distinction conferred upon one of their ancestors by an English monarch at some point in the family’s history. Thus, they had the hereditary right to sit in the House of Lords. The third category consists of life peers. The Life Peerage Act (1958) enables the government, through the monarch, to recognize people who have been out - standing public servants or who have made some significant achievement in industry or the professions by appointing them to the House of Lords. Unlike the hereditary peers, a life peer cannot pass the title onto his or her children.

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The House of Lords Act (1999) is considered the first of a two-part phase in the reform of the House of Lords. This act eliminated the automatic right of a hereditary peer to sit in the House. It called for the election of 90 hereditary peers to continue to serve, along with the two peers who held the ancient titles of Lord Great Chamberlain and Earl Marshall, making the total 92. This is a considerable reduction from the roughly 800 people who were eligible to sit. The bishops of the Church of England were allowed to retain their seats, but members of the monarch’s immediate family were excluded. The hereditary peers who were excluded from the House of Lords retain their title and are now eligible to stand for election to the House of Commons. While there is a good deal of uncertainty as to when the second phase of the reform of the Lords will occur, what is fairly certain is that the focus of reform will center on the actual powers accorded the Lords and on the nature of the composition of this legislative body—that is, a totally elected or partially elected and partially appointed House.

The House of Commons

Today, the most important component of Parliament is the House of Commons. When people speak of Parliament, they are usually referring to the House of Commons. The origins of this House can be traced to the thirteenth century, but it was not until the seventeenth-century English Civil War that the Commons gained the political ascendancy in Parliament.

Presently, the House consists of 650 elected members. The typical member of the Commons (M.P. for Member of Parliament) is affiliated with either the Conservative or Labour parties. This House, more than the other two components of Parliament, represents the various social and political elements of the British population. The major responsibility of the House is to vote on legislative bills proposed by either the government or a member of the Commons. Another duty is to discuss issues and pending legislation. Members of the party in power are obviously attempting to support the government, while members of the opposition parties (the parties that are out of power) seek to criticize it.

The function of discussing issues and pending legislation also serves a political end for all parties, because England can be considered to be in a continuous election campaign. Until recently, statutory law required that a general election be held every five years, but an election could be called before that time. For example, it was not uncommon for the party in power to call for an early election at a time when opinion polls indicated that it was riding a wave of popularity. In addition, if the government lost the support of a majority on an important vote in the Commons, it could request that the monarch dissolve Parliament and call for an election. Because election campaigns usually lasted about three to four weeks, political parties had to be continually capable of presenting their case to the people for either retaining power or gaining power in the Commons. Thus, the House of Commons continuously provided all parties with a forum for presenting their views to the British electorate.

The Fixed-term Parliaments Act became law in 2011. As the name suggests, this legislation introduced a new procedural rule that parliamentary general elections be held every five years on the first Thursday in May. Obviously, this eliminates the dissolution of

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Parliament by the party in power often for its own political advantage. The new legislation does permit the calling of an early general election under two circumstances. First, at least two-thirds of the members of the House of Commons vote on a motion to dissolve Parliament and call for an election. Second, Parliament can be dissolved and new elections called if there is a no-confidence vote in the government. This second rationale of calling for an early election had existed under the electoral rules prior to the passage of the Fixed- term Parliaments Act (2011).

Prime Minister

In the modern British constitution, the prime minister has become the fulcrum for the English form of parliamentary democracy. The way the political system works is largely dependent on the prime minister. The leader of the political party that has won a majority of seats in the House of Commons is selected to be the prime minister.

The qualities necessary for an effective prime minister are many; the person who occupies this position must be versatile. The reason for this is quite simple. The prime min - ister must combine into one job a set of responsibilities that in many countries are distributed among a number of people.

The prime minister is leader of the nation. National opinion polls are largely based on the personality and policies of the prime minister. Because the monarch has a right to be consulted on national issues, the prime minister is the personal advisor to the monarch. The prime minister is also leader of his or her political party. Although assisted in this leadership role by party whips, the prime minister nevertheless must function as a party manager and conciliator in keeping party members in line on important legislative issues before Parliament. Finally, the prime minister is chair of the cabinet, which is created by his or her appointments to it and which sets the goals and establishes the policies of the government.

The Cabinet

After the British electorate votes for their candidates, it is the responsibility of the monarch to request that the leader of the victorious party—the one that has won a majority of seats in the House of Commons—form a government. The British executive branch is composed of members in Parliament whose political party commands a majority in the House of Commons. This group is referred to as the cabinet. Membership in the cabinet is dominated by the House of Commons, with a few members from the House of Lords.

Generally, the prime minister includes in the cabinet all the outstanding leaders in the party. He or she is usually careful to include some younger members in order to groom them for future key leadership positions. The wise leader will also assure that the various points of view within the party are represented so that the cabinet serves as a microcosm of the entire party.

Each member of the cabinet is responsible to Parliament for the administration of his or her department. For example, the Chancellor of the Exchequer is responsible for the Treasury Department, while the foreign secretary is the chief executive of the Foreign Office.

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Collectively, the cabinet is accountable to Parliament for the administration of the entire government. Thus, the cabinet is responsible for three things: controlling the executive branch of government, coordinating the work of various departments, and determining government policy and submitting it to Parliament.

Political Parties

Although England has had three parties vying for power for more than 100 years, the Conservative and Labour parties are considered the major political parties. The benefits of a two-party system are similar to those found in the United States. The party that wins the election usually has a clear majority in Parliament. The formation of a government by the majority party assures a stable and disciplined government. The British electorate has a clear choice at election time to retain the party in power based on its record or to select the opposition party based on its promises for the future.

Conservative Party

The Conservative Party has a long heritage traceable to the seventeenth century. One of its remarkable achievements has been an ability to adapt to the changing political and social climate of opinion for more than 300 years. As is true of any conservative party, British conservatives support traditional institutions and political and social principles. Often they are devout defenders of the monarchy, the Church of England, and social class. Although they may accept change and innovation, they reject change for change’s sake. They prefer to retain established institutions and principles that have stood the test of time. This attitude helps to explain why some members of the party are skeptical of the European Union, in particular, the issue of monetary union.

The Conservative Party supports the principles of free enterprise, private property, freedom of choice, self-interest, and reward for ability; yet, they have accepted in principle the concept of the welfare state. They differ, however, with the opposition regarding the degree and the means with which social services should be provided. As long as change occurs within the framework of the constitutional tradition of parliamentary government, the Conservative Party is willing to accept and endorse state activity in the private sector, as well as social reform in the public sector.

Labour Party

The Labour Party was officially founded in 1900. The party’s ideology can be traced back to the middle of the nineteenth century, when England was the most industrialized country in the world. Throughout the twentieth century, the party supported a socialist ideology. Their political platform emphasized a movement toward extending democratic principles of the political realm to the economic marketplace. Their goals included the national- ization of industries by the government, a more equal distribution of wealth through a progressive income tax and other forms of taxation, the institution of social welfare services for all citizens, and the elimination of a class-based society. Like their conservative

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counterparts, the Labour Party has been willing to achieve these ends gradually through the parliamentary process.

In the past few years, the Labour Party has attempted to become more mainstream or centrist. To illustrate, they have changed their long-standing commitment to the nationalization of industries. They support a dynamic capitalistic economy that is capable of balancing the objectives of the private sector with the public interest and can display social compassion for the less fortunate. They have espoused a policy that is tough on crime and its causes. Finally, they initiated the current efforts at constitutional reform.

Liberal Democratic Party

In the late 1980s, the Liberal Democratic Party was created out of a merger of two small parties: the Liberal and the Social Democratic Parties. The Liberal Party traced its ideological position back to the seventeenth century. For much of the twentieth century, however, they had a difficult time retaining a viable party membership because they had been out of political office since 1915. Early in 1981, some discontented moderates of the Labour Party resigned their positions and formed a new political party called the Social Democratic Party as an alternative to the extreme leftist positions that were being espoused by the Labour Party at that time.

Presently, the Liberal Democratic Party has tended to attract the interests of the suburban middle class. They are the party of the individual versus the collective. They are public-sector-minded, with a strong power base in local government. They support the European Union, the reform of Parliament, and the reduction of tax breaks for the wealthy. While the Liberal Democrats claim to be the party of the center, they remain a fairly small party because the leadership of the Labour and Conservative Parties has tempered their more extreme positions.

In the 2010 parliamentary elections, the Conservative Party was unable to achieve a clear majority in the House of Commons. As a result, they formed a coalition government with the Liberal Democrats in order to secure a majority. The last time it was necessary to form a coalition government in the United Kingdom was in 1945.

As a result of the parliamentary elections held in May 2015, the Conservative Party won a clear majority of seats thus ending the need for a coalition. Of the 650 seats in the House of Commons, the Conservatives hold 330, Labour 232, and the Scottish National Party 56. Parties that secured at least three or more seats are: Liberal Democrats, Democratic Unionist Party, Sinn Fein, Plaid Cymru, and the Social Democratic and Labour Party.

The Crown

The Crown is the constitutional office that symbolically unites the people of England. This institution, because of its ancient heritage and the associated pageantry, is revered by a large segment of the British population. The monarch is the person who occupies this office. The degree of affection drawn by a monarch is based on both personality and approach to the office. Throughout the long history of the monarchy, the English have had a number of popular and unpopular monarchs. Despite the unpopularity of a particular monarch,

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the people usually were capable of making a distinction between the person and the office. Thus, they have continued to show deference to the Crown. Like the House of Lords, the monarchy is the antithesis of democracy. The monarchy, however, remains a powerful and useful symbol for the country, and a majority of the public appears to acknowledge this fact.

Most of the powers and duties of the monarch have already been suggested. There is one final personal prerogative that a monarch can exercise: the right to be consulted. This means that all important government business must be available for the monarch’s perusal. The significance of this right generally increases with the length of the monarch’s reign. Political leaders come and go, but the monarch often reigns for a number of years. The monarch can gain considerable insight into the affairs of state and view current policies with a historical and associational perspective that a political leader may lack. This position can enable a diligent monarch to influence the leaders who ultimately must decide policy. Although there is no way of measuring the effects of this situation, it is a fact that must be reckoned with when considering the utility of the Crown in twenty-first-century politics.

Administration

Although England is a unitary state, there are areas of government that are not the sole responsibility of Parliament. England has had a long history of county and municipal government—working either in association with Parliament or separated from it—that dates back to medieval times. Occasionally, it was deemed appropriate to allow local governments to administer certain matters at the local level. Sewage, water, and parks and recreation are examples of local responsibilities.

After World War II, the national government stepped up its efforts to nationalize industries, substituting private ownership with public ownership. Obviously, this increased the scope of its power. One of the hallmarks of Prime Minister Margaret Thatcher’s government was to reverse this trend of nationalizing industries by returning them to the private sector.

The areas of responsibility in which the national government has complete or almost complete control include matters pertaining to defense, foreign affairs, law, economics, social matters, and internal order. The national government has a significant role in judicial matters. Until 2006, the Lord Chancellor, who was appointed by the prime minister and was a member of the cabinet from the House of Lords, was ultimately responsible for appointing all judges. With the passage of the Constitutional Reform Act (2005), that responsibility passed to the Judicial Appointments Commission, whose members are selected by the Lord Chancellor. Internal order is a matter of shared responsibility between the national and local governments. For example, the police are accountable to the home secretary, who is also a member of the cabinet. This office establishes standards for all police forces and provides grants-in-aid equaling at least 51 percent of the costs for maintaining each of the forces. Local governments also have some control, for they are responsible for hiring officers and providing about 49 percent of the expenses needed to maintain their force.

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Since the 1960s, the national government has made a concerted effort to control the planning and administration of the criminal justice system. The Lord Chancellor was concerned with the efficiency and effectiveness of the courts, while the home secretary had increased authority for law enforcement and the prison service. This development was a direct result of the government having to deal with crises within various components of criminal justice. This arrangement, however, was becoming increasingly untenable. Critics raised several concerns, of which some cited constitutional issues. For example, questions were raised about the independence of the judiciary, while others focused on the incompatible responsibilities of the home secretary: policing and maintaining public order with prisons and protecting civil rights and reforming the criminal law. The ongoing furtherance of constitutional reform has attempted to rectify some of these problems. In 2007, a new Ministry of Justice was created and given responsibility for the courts, criminal law, prison and probation, and criminal justice reform. The Home Office had its focus narrowed to crime and policing, counter-terrorism, and immigration.

Over the course of the past three decades, almost every aspect of the criminal justice system has been the subject of interest to a government commission, an independent inquiry, or academic research. This has led to the passage of a significant amount of legislation directly impacting how the justice system is organized and administered. What happened in England during the 1980s and early 1990s is strikingly similar to what occurred in the United States during the 1960s and 1970s. The study of criminal justice has become a significant issue for the government and has emerged as an important field of study within England’s system of higher education.

POLICE The English have prided themselves on initiating a system of policing based at the local level but also mandated and in some fashion controlled by the central government. This shared responsibility for policing has existed throughout much of the country’s history. Prior to the creation of the Metropolitan Police of London in 1829, this tradition of shared responsibility took four distinct forms.

The tithing was the earliest type of community-organized policing; references are made to it in Anglo-Saxon dooms. Historians refer to the period before the Norman invasion of 1066 as the Anglo-Saxon era. Dooms were the statutes or ordinances enacted during that period. The tithing was based on principles of self-help and collective responsibility. Each tithing consisted of 10 men who were accountable for policing each other. If one of their number was accused of a crime, they were responsible for producing the defendant before a local court, and if they failed to surrender the individual, the court could impose a fine on the other members of the tithing. Supervision of the tithing was a responsibility of the sheriff, the local representative of the king. Therefore, during this early medieval period, the sheriff was the link between the local and the central government for criminal justice administration.

The creation of the office of constable was the next significant development in law enforcement. It occurred as a direct result of England emerging as a feudal society, following the Norman Conquest of 1066. With the advent of feudalism, the manor became

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Chapter 2

France

CONCEPTS TO KNOW

• Office of the President of France • Ministry of the Interior • National Gendarmerie • Proximity Policing • Republican Security Company • Constitutional Council • Courts of Assize • National School for the Judiciary • Ordinance of Villers-Cotterets (1539) • Justinian’s Code • Code of Criminal Procedure • Garde à Vue • Flagrant Offense • Investigating Judge • Liberty and Detention Judge • Chamber of Instruction • Post-Sentencing Judge • Juvenile Judge

INTRODUCTION

FRANCE is the largest country in continental Europe, consisting of 220,668 square miles. (Although Russia is larger, it occupies territory from Eastern Europe across northern Asia.) The country’s land borders are shared with Spain, Italy, Switzerland, Germany, Luxembourg, and Belgium, and the coastal boundaries include the English Channel, Atlantic Ocean, and Mediterranean Sea. When compared to the United States, France’s over 62 million

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PAYS DE LA LOIRE

POITOU CHARENTES

LIMOUSIN

AUVERGNE

PROVENCE-ALPES- COTE D'AZUR

LANGUEDOC- ROUSSILLON

MIDI-PYRENEES

AQUITAINE

CENTRE BOURGOGNE

BRETAGNE

NORMANDIE CHAMPAGNE

ARDENNE LORRAINE

ALSACE

FRANCHE- COMTE

RHONE- ALPES

HAUTE- NORMANDIE

NORD-PAS-DE-CALAIS

ILE-DE-FRANCE

CORSE

PICARDIE

ILE-DE-FRANCE

MONACO

UNITED KINGDOM

London

Brussels

Bern

Andorra

Vaduz

Amsterdam

LIECHTENSTEIN

AUSTRIA

ITALY

SPAIN ANDORRA

SWITZERLAND

GERMANY

BELGIUM

NETHERLANDS

LUXEMBOURG

Bay

Biscay

English Channel

Mediterranean Sea

North Sea

of

FRANCE

FIGURE 2.1 | France Map courtesy of Bruce Jones Design Inc.

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inhabitants live in an area that is smaller than the state of Texas. A majority of the French people lived for centuries in the provincial areas of the country. This changed after World War II as people moved to urban areas in search of employment. Paris is the premier city in the country. Its significance is based on the fact that it is not only the political, financial, and cultural center of the country but also home to the largest number of industrial complexes (see Figure 2.1).

The most notable change in the country’s economy has been the emergence of more large-scale and sophisticated industries. Compared to England and Germany, France was slow to develop its industrial complex. Among the reasons frequently cited for this were the country’s lack of natural resources, such as coal, and a preference for a rural environment. Today, France has established itself as a major industrial power. Its principal industries include automobiles, airplanes, chemicals, electronics, and energy.

The country appears fairly homogeneous on the surface. French is the official language, and the people are fiercely loyal to maintaining its linguistic purity. For centuries, the country was referred to as the eldest daughter of the Catholic Church. Some of the most significant examples of French culture are its religious paintings and the architectural designs of its cathedrals. Its principal public holidays, with the exception of two, are Catholic holidays.

These are largely superficial displays of homogeneity, however. France may be a Catholic country, but less than one-quarter of its citizens practice the religion with any degree of regularity. There are also significant and quite pronounced regional differences that include not only local customs that have existed for centuries but also more recent political and economic distinctions. For example, much of the industry is located in the north and northeast, whereas the west and southwest remain rural. Since the end of World War II, France has divested itself of what was once the second largest colonial empire. As a result, some of the people from these African, Middle Eastern, and Far Eastern holdings have emigrated to the mother country for political and economic reasons, thus diversifying the population further. Finally, French participation in the European Union has led to a large influx of guest workers from other European countries. Each of these factors has fostered the creation of a fairly heterogeneous society.

GOVERNMENT The French have perceived themselves for centuries as the leader (or at least at the center) of the development of European civilization. Indeed, the cultural contributions of the French people are beyond dispute. They have consistently made significant accomplishments in art, music, literature, science, and philosophy, and the country has never been isolated from the political events of Europe. Since the early medieval period, France has been at the center of European power struggles. In the early modern era, it attempted to rival Great Britain for colonial supremacy in the New World.

France’s modern contributions to political and social theory are of particular interest for our purposes. They not only assist us in comprehending French perceptions of government and social order, but they also indicate the state’s role in assuring that political and social mandates are carried out. If one were to ask a student of French politics to characterize the political climate of the country over the past 200 years, the response would

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most likely suggest a state of ambivalence, fragmentation, instability, and vacillation. No doubt, the student would also maintain that the principal reason for this state of uncertainty is the variation among individual perceptions regarding the historical significance of France’s famous Revolution of 1789. Since the Revolution, the French have shown an affinity for two ideas that are often at cross-purposes with one another. They have had a long and deep attachment to personal liberty, yet they also have an abiding faith in authority—especially when the power is wielded by a hero who serves both as a symbol and as a catalyst for national unity.

In the realm of national politics, comparisons between England and France have proved especially instructive at illustrating the diverse methods for establishing democratic principles and institutions. The most striking difference between these two countries has been the issue of constitutional continuity. The British largely resolved their political differences in 1688 with their Glorious Revolution. Since that time, political revolution and violent change in government have been noticeably absent in Britain. The British view political change as essentially evolutionary, and they have tended to view their political past with an affection that allows them to retain many traditional institutions.

The French have largely rebelled against their past, at least as it pertains to their political system. After all, the purpose of the French Revolution was to overthrow the ancient régime, which had enabled the Bourbon monarchy to rule the country by retaining many of the remnants of France’s feudal past while initiating a highly centralized and modern bureaucracy to govern the country. Unlike Britain’s Glorious Revolution, which resolved the main political controversies once and for all, France’s Revolution left the political debate unresolved. As such, the history of modern France has been one of recurrent revolution or threats of revolution. This is illustrated by the fact that since 1789 France has been governed by three constitutional monarchies, two empires, one semi-dictatorship, and five republics.

Another reason for the diversity between the modern political histories of Great Britain and France relates to a central feature of French political thought, that is, the ideological purity with which the French have often approached politics. Ideological purity enhances the likelihood that the political climate will be dominated by a sense of uncertainty, because the unbending commitment to political ideals leaves little room for pragmatic compromise. The French also have been fond of hero worship, especially in the political context. Heroes, of which the French have had many, have played an instrumental role in enhancing national unity.

Modern French political ideas have their basis in the eighteenth-century Enlightenment. Like other modern democracies, most notably England and the United States, the intellectual milieu of the Enlightenment philosophes had a profound impact on political theory. During the late eighteenth century, there emerged at least two major views as to how governmental reform should proceed in France.

On the one hand, there was a group of philosophes whose approach and attitude toward change was similar to that of the leaders of the American Revolution. In fact, some joined the American colonists in their cause and thus gained both intellectual and emotional sustenance for their own cause in France. This group believed in the inalienable rights of humankind and in the perfectibility of “man” through human progress. Thus, they were

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committed to overthrowing the political and religious tyranny that dominated eighteenth- century France and to the establishment of reason, humanitarianism, and individualism.

On the other hand, a second group—equally committed to the overthrow of tyranny— had a different perspective of the future. This group adopted the views expressed by Jean Jacques Rousseau. Rousseau exalted human instinct over reason and emphasized the community’s interests over those of individual rights. For Rousseau, there were no inalienable rights, only the rule of the majority. Thus, political equality was more significant than political liberty. The right of all to participate in the governmental process was more important than the right to be protected against the will of the government.

Through its famous Revolution, France adopted many of the basic political principles that have become synonymous with democracy. Among these are a commitment to the principles of equal rights for all, equality of representation, derivation of government powers from the people, separation of church and state, and government under law. These principles were embodied in the French Declaration of the Rights of Man and of the Citizen (1789). To this day, they remain the central doctrines of French republicanism.

Finally, it was noted earlier that the French Revolution was prompted in part by the desire to overthrow religious tyranny. That tyranny was associated with the power of the Roman Catholic Church that had been incrementally accrued since medieval times. Since the Revolution, the state has established a policy of laicité or secularism in French politics and society. This policy is best illustrated by laws enacted to explain how the state and organized religion interact. The actual term, laicité, was first used in legislation in 1905 to address the notion of the separation of the state and church. In the French context at the time, emphasis was directed at reducing the influence of the Catholic Church in public institutions, in particular, schools.

How the term is employed and interpreted today has created a good deal of controversy. A recent tension has centered on the 2004 law that prohibits the wearing of clothing in public schools that identifies a student’s religious affiliation. The specific controversy is the banning of Muslim girls from wearing headscarves to public schools (Bowen, 2007). This law also illustrates another theme previously mentioned in French political theory, that is, the emphasis placed on the state and the majority interests over perceived individual rights.

For some time now, there have been tensions between various agents of the French government and Muslim communities. It should be noted that France has the largest Muslim population in Western Europe, estimated at 5 to 6 million people. The strained relations have been especially notable with agents of the criminal justice system in general and the police in particular. While headscarves may have exacerbated the uneasiness in the recent past, there is a greater concern of late over young Muslims leaving the country to join jihadists in the Middle East and, in some cases, returning to France.

Constitution

The French government is organized and administered according to the Constitution of the Fifth Republic. This constitution is often referred to as Gaullist, because the document was essentially the creation of General Charles de Gaulle. On June 1, 1958, de Gaulle became prime minister of France while the Constitution of the Fourth Republic was still in effect.

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The general’s mandate was to revise the constitution, and by September of that year, he submitted to the French people in a national referendum his constitution for the Fifth Republic.

Unlike many written constitutions, including the Constitution of the Fourth Republic, the new document did not contain a bill of rights that specifically clarified civil liberty issues. Article 2 simply states, “France is a Republic, indivisible, secular, democratic and social. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.” Moreover, the preamble solemnly proclaims its attachment to “the Declaration of the Rights of Man and reaffirms its commitment to the civil rights established in the Constitution of the Fourth Republic.” However, the preamble does not have the force of law.

The entire document is divided into 24 titles, including a total of 92 articles. Each title is addressed to a particular aspect of constitutional authority. For example, Title I is concerned with sovereignty, while Titles II through IV are devoted respectively to the president, the government, and the parliament. The order in which each appears in the constitution is illustrative of the significant position that has been afforded the president and the secondary status of parliament. When compared to the Fourth Republic, these are important changes.

The Constitution of the Fifth Republic was unmistakably influenced by the political views of de Gaulle. Under the Fifth Republic, the president is vested with broad powers. The ultimate holder of state power, the president delegates authority and mediates between governmental authorities to assure that constitutional principles are safeguarded. De Gaulle tailored the office of presidency to fit the image that he perceived himself to exemplify.

President

As was previously indicated, the Office of the President of France is vested with extremely broad and independent powers. It is said that the presidency is a politically irresponsible position, because the other branches of government have an impotent check on the office. The president is elected to a five-year term by direct universal suffrage. Until 2008, there were no limits on the number of terms a president could serve. It is now limited to two. The president is the head of state, but this is not a mere figurehead position, for he or she is responsible for assuring the country’s national independence and adherence to the constitution. According to Article 5, the president accomplishes these tasks through a position as mediator or arbitrator.

The constitution also gives the president a number of personally significant powers. The president appoints the premier, who is the head of the government. The president has the prerogative to dissolve the National Assembly on any issue at any time. There is one proviso, however; this can be done only once within a year’s time. The president may also submit to the people, by way of referendum, certain issues that deal with govern- mental powers. Additionally, according to Article 16, if the country is in grave danger, or if the governmental authority created by the constitution is in some way disrupted, the president has the discretionary power to take appropriate measures to resolve the crisis.

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The Constitutional Council must first be consulted under such circumstances. Finally, the president signs all decrees and ordinances prepared by the Council of Ministers and may question the constitutionality of any bill before parliament or law passed by it.

Premier

The premier (also referred to as the prime minister) is appointed by the president. According to the constitution, the premier is the head of the government (or administration), while the president is the head of state. The premier is not merely a ceremonial figure, but his or her status is less significant under the Fifth Republic than under the Fourth. Although the premier directs government operations, which define and conduct the policy of the nation, it is the president who actually decides government policy. The premier serves as a link between the president and parliament. He or she appears before parliament to defend or explain government policy, determines the composition of the Council of Ministers, presides over its meetings, and is responsible for the administration of the various governmental departments.

Council of Ministers

The Council of Ministers is the French equivalent to cabinet government. Members of the council are selected by the premier with the approval of the president. The size of the council varies with each government and is dependent on the particular needs of the times. The composition of the council has changed significantly under the Fifth Republic. The Council of Ministers is no longer composed of members of parliament, who in the past had to resign their legislative seat to serve in the council. Instead, presidents of the Fifth Republic have relied upon people who often have had no legislative experience. Increasingly, the council has been composed of three kinds of people: career civil servants, university professors, and technical experts. Like councils of ministers under previous regimes, the principle of cabinet responsibility is retained and is more effectively enforced because the premier and the ministers are dependent upon presidential power.

Parliament

The Fifth Republic retained the bicameral parliament. The parliament consists of the Senate (known as the upper chamber) and the National Assembly (referred to as the lower chamber). The Senate is composed of 348 senators who are elected to six-year terms, with one-third of the membership being elected every three years. Senators are not elected directly by the people; rather, an electoral college (which is composed of about 145,000 people) votes for the candidates. The college consists of members of department and municipal councils in addition to members of the National Assembly. The Senate shares the legislative powers with the National Assembly, but the lower chamber is considered more powerful than the upper chamber because the latter’s authority does not allow them to dismiss a government.

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The National Assembly is composed of 577 deputies, who are elected directly by the people to five-year terms. Although the National Assembly shares its legislative duties with the Senate, there are two exceptions to this principle. The National Assembly always examines the government’s budget first, and the Council of Ministers is responsible only to the lower chamber. These exceptions tilt the balance of power between the two chambers toward the National Assembly.

The power of both chambers has been limited by the Fifth Republic. For example, each chamber holds two sessions during the course of a legislative term. One begins in October and is concluded in December, while the other session commences in April and ends in July. Extra sessions can be requested by the premier or by a majority in the National Assembly. Article 34 of the constitution is quite specific on the extent of parliament’s law- making authority. All legislation that is not mentioned in the article is enacted by the government through decrees. Moreover, parliament no longer controls the order of its business, for this authority is now determined by the government. In addition, the government can reject any amendments attached to its bills by demanding a vote either on the bill it submitted or on only those amendments that it approves.

Political Parties

As was previously indicated, French politics tend to be unstable. This is caused in part by the manner in which French politicians and voters approach political issues. How individuals perceive the place of the French Revolution in history impacts upon their views of the politics of the present and the direction they advocate for the future. The French also have had a tendency to emphasize ideological purity and a commitment to political principles; as a result, they often have rejected compromises proposed for the pragmatic considerations at hand. This political posturing helped lead France to a multiparty system.

It has been suggested that the establishment of the Fifth Republic has had a significant impact on the party system, with regard to both the internal characteristics of parties and their willingness to work as coalition partners (Ehrmann, 1976). Unlike England and the United States, which tend to have fairly stable parties, France’s system is unpredictable; political parties tend to emerge and decline. There has been a marked decline in membership in virtually all the major political parties. This disenchantment has been attributed, in part, to domestic economic concerns and the uncertain future position of France with regard to the European Union.

With regard to presidential elections, it is interesting to note the relationship between political parties and presidential candidates. At times, the French approach can be somewhat different from that of the political processes in England and the United States in which a candidate from a party is selected to run for president. While some French candidates receive the endorsement of their party, there are cases in which a person announces candidacy and then seeks the endorsement of a political party or parties. Therefore, it is not necessary for a presidential candidate to have a close association with a political party, nor is it unusual for a political party not to have a presidential candidate. Finally, because of the multiparty system and the changing nature of the parties, political commentators have often grouped parties into one of three ideological categories: right, center, and left.

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National Front

The extreme right is represented by the National Front. It has received a good deal of attention for the past two decades, in part because of the tactics of its founder, Jean-Marie Le Pen. The principal item on the agenda of the National Front is its opposition to minority groups, particularly the influx of immigrants. The party alleges that immigrants take jobs away from French citizens and are responsible for a significant amount of crime. Moreover, the party’s opposition to immigration has been strongly associated of late with Islamic terrorists. In 2011, Marine Le Pen succeeded her father as the leader of the National Front.

There are other small political parties or action groups of the far right that tend to support the National Front during presidential elections. These groups include royalists, fascists, and Roman Catholics who have rejected the modernization within their church.

Movement for France

The Movement for France is a relatively new political party that is also associated with the far right. It is similar to the National Front in that it opposes European Union and free trade and supports family, church, and law and order. It differs from the National Front in the manner in which it delivers its message of returning to traditional values. For example, on the issue of immigration, the position of the National Front is to deport all non-European immigrants and to expel any immigrant who is unemployed or convicted of a crime. The position of the Movement for France on this issue is to implement humane measures to stop the influx of more immigrants.

Union for a Popular Movement (UMP)

The UMP (Union pour un Mouvement Populaire) is the most recent version of the party that supports the Gaullist movement. It is a fairly large party that manages to attract a good cross-section of the population. The party differs considerably from that of the RPF (Rassemblement du Peuple Français), which served as the first standard-bearer of Gaullism. People who supported the RPF were primarily attracted to it because of de Gaulle’s personality. Supporters of the UMP are more concerned with solving France’s problems through a conservative platform than with holding on to an ideological past. The party favors a market economy, but it also supports a significant degree of state regulation by the central government.

Socialist Party

The Socialist Party is the successor of the old SFIO (Section Française de l’Internationale Ouvriere), which at one time represented the cause of French socialism. Until the 1970s, most political commentators alleged that the principal problem facing the socialists was the fact that there was another viable political party in France that was even further to the left (that is, the Communist Party). As a result, the socialists failed to attract the necessary

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following to win the presidential election. In the early 1970s, however, the socialists reorganized under the leadership of François Mitterrand, and in 1981, Mitterrand won the presidential election. Two factors contributed to his success: a decline in support of the Communist Party and a public rejection of the continued governance by the political right, which had maintained power for more than 20 years. In 1988, he was reelected to a second term as president, with the goal of forming a center-left coalition. Today, the Socialists support a strong state and a mixed economy.

Communist Party (PCF)

For a time, the French Communist Party attracted the support of the trade union movement. The PCF (Parti Communiste Français) was allied with Moscow but often took a moderate stand in order to compete with socialists for votes. Throughout the 1960s and 1970s, it made respectable showings in various elections, but with the success of the Socialist Party in the 1980s, its influence declined. The party supports enhancing the social welfare system, increasing the minimum wage, reducing the income tax, and increasing the wealth tax.

Green Parties

In countries that have a multiparty system, it has become increasingly common to find one that is identified as the principal advocate for ecological issues. They are often simply referred to as the Green Party. Presently, there are two groups associated with this movement in France; they are the Greens and the Ecologists. In addition to the environment, people associated with these parties also tend to support greater opportunities for women in politics.

Administration

Despite the inherent uncertainties of French politics and the various changes regarding the basic method of governance, there had been one factor that remained stable for more than 200 years: the bureaucracy or civil service. Unlike England and the United States, where there is a tradition of local participation and decision making in government, the French have prized a highly centralized administrative system. This system has its origins in the seventeenth century when Cardinals Richelieu and Mazarin and Jean Baptiste Colbert created a bureaucracy that wrestled power from the nobility in the provinces and placed it firmly in the hands of the Bourbon monarchy. When Napoleon came to power, he simply streamlined the system further.

Although the national bureaucracy is highly centralized in Paris, one should not be left with the impression that all administrators are situated in that city. Most are located in the provinces, where they can implement policy directly. Since 1790, the departments (of which there are 96 on the mainland and four in the overseas territories) have been the basic units of French government. These units of administration are similar to counties. However, they do not establish local policies independently; rather, they are viewed as subunits of the

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national government. Each department is administered by a prefect appointed by the government to enforce the laws and orders of the nation and, until relatively recently, to supervise local units of government.

Communes are also a significant unit of government. They vary in size and are located in both urban and rural areas. Each commune has a municipal council elected by the people. The council, in turn, selects one of its own to serve as mayor. The mayor is expected to serve as both a national administrator and a municipal supervisor. The relationship of the mayor to both the national government and his or her local commune is illustrative of the manner in which the French have perceived local government.

With the election of François Mitterrand as president in 1981, significant changes were introduced regarding the nature of public administration. One of the principal pledges of the Socialist Party was to bring government closer to the people through a process of decentralization or self-management at the local level. One should not be left with the view that the goal of decentralization was unique to the Socialist Party, however. Previous governments of the Fifth Republic addressed this issue. In fact, a central feature of General de Gaulle’s plans to modernize France involved regional administrative reforms, especially in the area of economics. Nevertheless, most experts are of the opinion that the reforms introduced by Mitterrand in 1982 were the most far-reaching since Napoleon introduced his structure of governance for the country in 1801.

Mitterrand’s legislation was designed to enhance the role of local systems of government. While the prefects retained state powers over law and order, local systems of government could opt to hire their own executive to administer new local governmental functions. The local executive would be accountable to the mayor and locally elected officials. The new functions specifically earmarked for local governments include urban planning, housing, transportation, job training, social services, some educational and cultural programs, environmental controls, and (most controversial of all) some local police services. The legislation permits communes to waive these new responsibilities, and some of the smaller ones that cannot afford to hire an executive have asked their prefect to help manage these new responsibilities. This is essentially what the prefects of the departments used to do before the introduction of efforts to decentralize the government.

Although Mitterrand’s government was committed to decentralization and initiated the enabling legislation, these complex changes will take some time to implement. Some degree of consensus is needed with regard to identifying the responsibilities that are best left at the national level and those that are appropriate for local units of government. In addition, local governments have to be willing and capable of undertaking these new duties, while national units of government have to be willing to surrender some long-standing responsibilities.

A number of points described within the French political context have important implications for France’s criminal justice system. Most significant is the fact that the country has had an unstable political past that has been accompanied by violent rhetoric and revolution. Central to French political thought are two conflicting views in perceiving the role of the individual citizen. One favors individual liberty, while the other embraces the belief that the community’s interests should take precedence over individual rights.

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Moreover, the reliance of the French upon a centralized government bureaucracy is also important when assessing the organization and administration of the criminal justice system. More recent implementation of reforms designed to decentralize that authority could alter that assessment over time.

POLICE Many countries throughout the world have established a national centralized police system as the principal vehicle for law enforcement responsibilities. From a Western perspective, this model traces its origins to the Roman style of policing, in which the central govern- ment created a police force for the community. Today, this approach is found in both democratic and nondemocratic countries. Unlike the fragmented police model, which is found in the United States and is attributed to the federated nature of the political system, the centralized police system is imposed on the people by the national government. Law enforcement is administered, supervised, and coordinated by that government. Moreover, the police are considered by both themselves and others as representatives of the state. For our purposes, France serves as an example of a democratic country that has established a national police system.

Throughout the history of France, Paris has had a unique place in the chronicles of the country. It is generally agreed that the French king, Hugh Capet (987–996), established the first police force when he created the position of Provost of Paris. This office combined three significant enforcement responsibilities: President of the Court of Justice, Military Governor, and Governor of the Police. The merger of these responsibilities was a result of Roman influence from when the ancient country of Gaul was part of the Roman Empire; it remained a characteristic of the French police establishment for centuries.

The provost was assisted in law enforcement duties by a number of forces. For example, the provost had at his disposal an artillery company, a horse patrol, a foot patrol, and “watchmen.” This array of units was reinforced further by constables and night-watch sentries who were responsible for policing specific quarters (territorial divisions) of the city. Because French kings were politically weak, they were not in a position to impose their police system on the rest of the country. As a result, the nobles who controlled the provinces tended to rely upon their military troops to maintain order in the countryside. This dual system of Parisian and provincial law enforcement was to exist relatively unchanged until the seventeenth century.

French kings solidified their royal authority by the seventeenth century. Under the forceful administrations of Cardinals Richelieu and Mazarin, the reigns of Louis XIII and Louis XIV marked France’s preeminence in the world. It was during this time that Jean Baptiste Colbert, Louis XIV’s finance minister, created a truly national police force. The organization established in Paris is described here, but similar forces were created in the provinces on a modified scale.

The leader of the police in the city was called the lieutenant-general of police. Appointed by the king, the lieutenant-general was both magistrate and chief public safety officer. Thus, the Roman tradition of combining these duties (which was carried on by Hugh

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INTRODUCTION

JAPAN is an island country located off the eastern coast of the Eurasian continent. It is generally considered a small country, in part because its geographical proximity to China and Russia dwarfs its size. However, compared to western European countries, Japan’s 145,902 square miles make it larger than England or Italy. In terms of the United States, it is slightly smaller than the state of California (see Figure 3.1). Japan’s population of 126.5 million is more than twice that found in England, and they are among the world’s most literate people. It is also interesting to note that Japan’s population is growing older faster than any other country in the world. This fact raises a host of economic and social issues for the country’s future. Because the terrain is very mountainous and the habitable land limited, Japan is one of the most densely populated regions in the world.

Although the climate is conducive to farming, less than 15 percent of the land is fertile enough for agriculture. Fishing has long been a significant source of income, but the attention Japan receives regarding its economy generally centers on its industrial production. Before the middle of the nineteenth century, Japan was one of the most isolated countries in the world, and this insular position was by design. The political leadership realized, however, that it could no longer maintain that posture completely. As a result, the leaders made a conscious decision to industrialize. Although the country is not rich in mineral deposits, Japan has emerged as an industrial giant since World War II. Japan is unique in that it is the only non-Western country that has become completely industrialized, exporting a wide range of products that include motor vehicles, electronic equipment, and mechanical tools.

Like the Scandinavians, the Japanese have remained one of the most homogenous of the advanced peoples in the world. More than 98 percent of the population is Japanese, and the largest minority group is Korean. The Japanese have a common history, language, and race. The dominant religions are Shintoism and Buddhism, but these are viewed more as features of Japanese custom than as beliefs that attract devoted followers. It has been estimated that between 70 and 80 percent of the people do not practice any religion. The homogenous qualities of the Japanese are enhanced further by their insular society and entrepreneurial spirit. This may appear somewhat contradictory from a Western perspective, but it is an example of a curious blending of the country’s traditions with modern pragmatism.

The Japanese recognized the value of expanding their trade routes and introducing industrialization to an economy that for centuries had been based on feudal principles. Because of their commitment to this change, the Japanese are recognized today for a competitive spirit that had long been associated with capitalist countries in the West. However, it is a group competitiveness rather than an individual competitiveness that has dominated the Japanese psyche. This style is rooted in the traditional cohesiveness of a society marked by a sense of conformity and uniformity. This explains, in part, why greater attention is focused upon the group rather than the individual. It has been suggested that the reliance upon the group is illustrated in a number of ways (Reischauer, 1977). In the world of business, for example, a person is valued more as a member of a team rather than for individual contributions. As a result, the Japanese are competitive in the business world but not very creative. Emphasis on the group stifles the individual initiative that has

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traditionally been considered the source of creativity and originality. The group characteristic is also evident in the political arena, as emphasis is placed on reaching consensus opinions through decisions made in committee. At a more personal level, parental authority and familial ties are also stronger in Japan than in Western society, although this is beginning to change.

Edwin Reischauer (1977) argued that the group mentality is evident in yet another context. Individuals in Japan generally are not guilt-ridden when they do something wrong, because the culture does not condition people to feel that they have in some way sinned. This is partially attributable to the lack of a dominant Christian heritage. The sense of belonging to a group has a significant impact, however. When committing a wrong, a member is more apt to feel a sense of shame because of violating the norms of the group or society. Thus, deviant behavior is considered a rejection of the social norms to which individuals are expected to conform—norms that are a part of the country’s tradition.

Because of an absence of the Judeo-Christian heritage, deviants are neither held in contempt by society nor condemned by the agents of the administration of justice. The Japanese are more likely to display a sense of pity toward the transgressor, and this is accompanied by more lenient judgments imposed on the person.

GOVERNMENT By the late 1860s, the Tokugawa Shogunate, which represented the last vestiges of Japanese feudalism, was overthrown. In 1868, the imperial family was returned to a new position of reverence. This event is referred to as the Meiji Restoration. The date is usually cited as the beginning of extensive contact with the West. It has been suggested that this contact led to a transformation in the economic system that has enabled Japan to emerge as an industrial giant. At about this time, the Japanese were introduced to Western political principles, and in 1889, Japan adopted its first constitution.

The Constitution

People have a tendency to associate the establishment of a constitutional form of govern- ment with the modernization of a country’s political system. With our historical hindsight, however, we tend to view Japan’s Meiji Constitution as more of a transitional document toward modernity. Although the political ideas of the West were introduced in the docu- ment, they had to be justified and placed in the context of Japanese tradition. The form of the Meiji Constitution followed Western tradition. It was noted for the establishment of executive, legislative, and judicial branches of government; the development of cabinet government with a prime minister; the creation of a bicameral legislature; and the emer- gence of a sophisticated government bureaucracy. However, the similarities to Western tradition end there, for in substance, the political powers were not separated by a system of checks and balances. The emperor became, at least in name, an absolute sovereign, and the state ruled supreme over the citizenry. The authoritarian nature of the system led to a militaristic posturing both at home and abroad that did not end until the Japanese defeat in World War II.

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The close of World War II brought the next major political change since the Meiji Restoration. As victors in battle, the United States controlled the postwar reconstruction of Japan. The period between 1945 and 1952 is known as the Occupation. As a part of that control, a new constitution was introduced in 1947. The Preamble to the document states:

We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolve that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution.

Thus, both the country’s future prospects and recent past are acknowledged at the beginning of the document. The Showa Constitution is truly an Anglo-American document modeled after the British parliamentary system. The emperor’s status is limited to a symbolic function, and political power rests in the legislative branch. The constitution established a cabinet form of government with a prime minister and created a new judicial system.

Moreover, Chapter III of the Showa Constitution is devoted to the rights and duties of the people. Many of the articles in this section are similar to the constitutional or statutory pronouncements found in the United States. Articles 31 through 39 are of particular interest because they establish many of the rights that are espoused in the Fourth, Fifth, Sixth, and Eighth Amendments of the United States Constitution. To illustrate, article 31 states: “No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedures established by law.” Article 32 proclaims: “No person shall be denied the right of access to the courts.” Article 33 includes the statement: “No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, . . .”; while article 34 indicates: “No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel. . . .” Article 35 proclaims, in part: “The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause.” Article 36 states that “cruel punishments are absolutely forbidden,” while article 37 indicates that “in all criminal cases the accused shall enjoy the right to a speedy and public trial by an impartial tribunal.” Article 38 points out that: “No person shall be compelled to testify against himself . . . ,” while article 39 addresses the matter of double jeopardy, among other things. Clearly, the Japanese constitution embraces the principles associated with the rule of law. From time to time, questions have been raised about the agents of the justice system actually complying with these principles. Those questions will be covered in the subsections of this chapter.

The Diet

Legislative authority rests with the Diet, which is a bicameral parliament consisting of a House of Representatives and a House of Councillors. The House of Councillors is the upper chamber; it includes 242 members who are elected to six-year terms. Candidates for

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election must be at least 30 years of age. The House of Representatives is the lower chamber. Like other parliamentary democracies, this chamber is the larger one. It has 480 members elected to four-year terms and is considered the more powerful of the two. Candidates for election must be at least 25 years of age. The House of Representatives elects the prime minister and controls the budget. Each of the houses has a committee system that was originally modeled after the American approach. The manner in which the system works is actually more in line with that found in Sweden. The government bureaucracy does most of the work in the preparation of legislation, which is then introduced to the Diet by the cabinet. It should be noted that all Japanese citizens who have attained the age of 20 are eligible to vote.

The Cabinet

Although the Showa Constitution states that “the highest organ of state power” is the Diet, it is the cabinet that holds the political initiative. The prime minister selects the people to serve in the cabinet, and the majority must be members of the Diet. The cabinet is collectively responsible to the Diet. It numbers approximately 20 people, of which about one-third are ministers without portfolio, who administer subministry departments. The other ministers head specific ministries, the most important being finance, foreign affairs, and international trade and industry.

Prime Minister

The political position of the Japanese prime minister is similar to that in England. The prime minister is elected by members of the Diet. The person selected is always a member of the House of Representatives. This individual is the leader of the government (or administration) and of his or her political party. The prime minister selects the people to serve in the cabinet and functions like a chair of the board for that body. The prime minister and other cabinet ministers are responsible for developing and defending their government policy in the Diet. They can appear in either chamber to explain the government’s position on a specific issue. As in the British system, the Japanese House of Representatives can pass a no-confidence resolution forcing the prime minister and the associated government to resign.

Political Parties

It was not until the Meiji Restoration that political parties were introduced in Japan. Reischauer (1977) indicated that the Japanese, just as the Chinese, had long opposed the party concept. He pointed out that during the premodern period the notion of a political party was interpreted to mean disharmony and, on occasion, was associated with subversive activities. This attitude was tempered somewhat during the late Tokugawa Shogunate (the period before the Meiji Restoration) when political factions established rivalries within the bureaucracy.

Today, the Japanese maintain a multiparty system. Since 1955, the Liberal Democratic Party had usually held a majority in the Diet and thus ruled the country. The party attracted a fairly wide following from a number of sources, but tended to be labeled conservative

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in its overall position on policy issues. What precipitated the party’s brief loss of power was a series of corruption scandals that emerged in 1989 and implicated many party leaders. In addition, it was unable to introduce fundamental political reform, in large part because of infighting within its ranks (Yokoyama, 2005).

In 2009, the Liberal Democratic Party again lost power when they were overwhelmingly defeated by the Democratic Party. It has been generally suggested that this defeat was the result of Japan’s continuing economic troubles and the demise of communism as a serious threat to the region. The nature of the defeat also proclaimed the end of a one-party rule for the country and the emergence of a more competitive political landscape with two major parties vying for power.

The Democratic Party, however, failed to gain widespread support. There had also been a good deal of tension with its socialist policy agenda and leadership issues. The Liberal Democratic Party returned to power in 2012, while adhering to its conservative political, economic, and social principles.

In addition to these two major parties, there are other parties, all fairly small. They include the Japan Restoration Party, which supports a more open economic system and a reduction in the size of government. New Komeito is the political wing of the Japanese Buddhist organization, Soka Gakkai. While its platform focuses on the environment, health care, social security, education reform, and the promotion of peace, it has moved somewhat to the right as a coalition partner with the Liberal Democratic Party. Your Party attracts young urban professionals with its agenda of small government, lower taxes, and a more open economy. Finally, the Japanese Communist Party is the oldest political party. It remains quite small and espouses a socialist political and economic agenda, supports the country’s pacifist constitution, and opposes the security alliance with the United States.

The Emperor

The restoration of the imperial family in 1868 did not lead to the emperor actually assuming authority. Instead, the political leaders behind the restoration wanted the emperor to reign rather than rule. He was to serve as a symbol of national unity, whereas civilian politicians were responsible for governing the country. The fact that the Emperor Meiji was a boy when he assumed the throne made the system easier to implement. He was succeeded by Taisho (1912–1926), who was mentally incapable of asserting his position, even if he had so desired. Finally, many Japanese scholars are of the opinion that Emperor Showa (1926–1989) had never aspired to be anything but a symbol for his country.

At the end of World War II, the new constitution changed the doctrine of imperial sovereignty spelled out in the Meiji Constitution to the principle of popular sovereignty. Article I of the Showa Constitution states that “[t]he Emperor shall be the symbol of the State and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power.” Thus, the emperor has a position comparable to that of the heads of the few remaining royal families in Europe; he is a figurehead. With his ascension to the throne in 1989, Emperor Akihito announced his firm support for democratic principles and the rule of law. Moreover, opinion polls indicate that the people continue to express a deep attachment to the imperial family and its symbolic role.

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Administration

Government administration is carried out at three levels: national, county, and local. The national administration is conducted by governmental ministries and a large bureaucracy. The Japanese system is in line with European systems in that most of the power and control rests with the central administration. Following the war and during the American occupation, attempts were made to decentralize the national government’s authority. For example, control of the police and the educational systems were placed at the local level in an attempt to introduce home rule in Japan. The size of the country and its history of modeling procedures along the lines of European governments combined to lead to the abandonment of this scheme. Thus, the Japanese have returned to a system in which the national government dominates the political decision-making process.

In the realm of criminal justice administration, the police are ultimately responsible to the prime minister. The correctional system and some aspects of the legal profession are regulated by the Ministry of Justice. The justices of the Japanese Supreme Court are initially appointed by the prime minister; they, in turn, nominate judges to the lower courts. During the occupation, the Americans introduced the concept of judicial review on the con stitutionality of legislation. In comparison to American courts, however, the Japanese justices rarely wield this authority.

The other two forms of government are found at the county and local levels. Japan has long been divided into prefectures. These are similar in size to American and British counties, and they function along the lines of French departments. There are 47 prefectures in Japan, each having an elected assembly and a governor as the chief administrative officer. The local administration includes cities, towns, and villages. These units also have elected assemblies and mayors. Most of the work at prefectural and local levels involves the implementation of national policy. It has been suggested, however, that this trend may be shifting slightly, for the local units are beginning to address local and regional concerns about the environment and the quality of life (Reischauer, 1977). Nevertheless, national issues and priorities continue to take precedence over local concerns.

POLICE Historians of the Japanese police generally divide the evolution of that system into five distinct phases. In many respects, the history of the police (at least before the Meiji Restoration) mirrors the events that occurred in Europe. During the first phase, which encompassed the period from 700 to 1603, Japan had a dual police system composed of both public and private forces. The central government’s ministries of War, Justice, and Popular Affairs retained police and judicial responsibilities (Ames, 1981; Hall and Beardsley, 1965). It was the army, however, that initially served as a professional police force. With the advent of feudalism, the method of maintaining order was decentralized. The shogunate increasingly turned to the samurai to provide law enforcement during peacetime. These forces were assisted in their endeavors by mutual self-help groups composed of family households. Mandated by the Taiho Code, this system was strikingly similar in operation to that of the English tithing system.

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INTRODUCTION

SOUTH AFRICA encompasses the southern tip of the African continent. It is the ninth largest country on the continent and the thirty-third largest in the world. Its northern border is shared with Namibia, Botswana, Zimbabwe, Mozambique, and Swaziland. Its coastline borders the Indian Ocean on the east and south and the Atlantic Ocean on the west. In addition, South Africa surrounds the small country of Lesotho, which is approximately the size of the state of Maryland. Lesotho is a constitutional monarchy that gained its independence from the United Kingdom in 1966 (see Figure 4.1).

The population of South Africa is almost 53 million and consists of 79.5 percent black, 9 percent white, 9 percent “colored,” and 2.5 percent Asian or Indian residents. The use of the word “colored” in the South African context refers to people of mixed race and often is associated with people of African and Dutch ancestry. The principal industries of the country are minerals, mining, motor vehicles, and machinery. South Africa is a significant producer of platinum, manganese, gold, and chrome. Its major trading markets include China, Germany, the United Kingdom, and the United States.

South Africa has 11 official languages: Afrikaans, English, isiNdebele, isiXhosa, isiZulu, Sepedi, Sesotho, Setswana, siSwati, Tshivenda, and Xitsonga. With the exception of Afrikaans and English, the other languages are all Bantu languages. Bantu languages are spoken by more than 100 million Africans in east, central, and southern Africa. Afrikaans is a seventeenth-century variation of Dutch that has been considered a distinct language since the nineteenth century. Approximately 7 percent of the South African population are Afrikaners, that is, people who trace their roots to the early Dutch, French, and German settlers. Most of the English spoken is by nonwhites, along with approximately 2 million English-speaking whites who trace their ancestors to British immigrants and to the 1 million people of Asian/Indian origins.

Throughout the second half of the twentieth century South Africa was associated most with its policy of apartheid, a white supremacist ideology that emphasized white domination and racial discrimination. More will be said about apartheid shortly. First, an outline is offered of the arrival of white Europeans to this part of Africa and the pre-apartheid policies of racial segregation that had been introduced and in practice for a number of decades before the advent of what is considered the apartheid era.

What prompted Europeans to travel to the southern tip of Africa was the search for a direct route to India and access to the spice trade. Initially, Portugal dominated this route, but they soon found themselves in competition with Dutch, English, and other European merchants by the seventeenth century. These merchants would stop at the Cape peninsula to renew their fresh water and take on other supplies, such as timber for masts and fresh meat and vegetables. This was accomplished by trading with the Khoikhoi people. The Khoikhoi were pastoralists and moved with the seasons in search of pasture land for their sheep and cattle. Thus, they had not established permanent settlements as that term was understood by the Europeans.

In 1652, the Dutch East India Company, the world’s most significant trading company, with a fleet of around 6,000 ships, established a station at Table Bay on the Cape peninsula.

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The station commander, Jan van Riebeeck, was authorized by the Company to build a fort and to establish a more permanent supply station. In order to create the station, laborers were needed. While some laborers came from Europe, the Company relied on slaves. The slaves came from African regions that are today known as Angola, Mozambique, and Madagascar, but a larger number came from Indonesia, India, and Ceylon (the former name for Sri Lanka). Thus, the Company was not capturing the local Khoikhoi and turning them into slaves. It is interesting to note that there were some free blacks living in Cape Town in the seventeenth century and that, by the end of the century, they were required to secure a pass if they wanted to leave the town. The significance of the pass will become apparent shortly.

The Company also began to release some of their employees from contractual service and provide them with land. This land had obviously been used by the Khoikhoi for centuries. The objective was to have these “free burghers” farm the land and thus supply the Company with the provisions that the Khoikhoi people provided. Such farming

EASTERN CAPE

LESOTHO

KWAZULU / NATAL

EASTERN TRANSVAAL

NORTHERN TRANSVAAL (LIMPOPO)

SWAZILAND GALTENG

ORANGE FREE STATE

NORTHWEST

WESTERN CAPE

INDIAN OCEAN

INDIAN OCEANSOUTH ATLANTIC OCEAN

NORTHERN CAPE

Maseru

Bisho

Umtata

Bloemfontein

Durban

Ladysmith

Pretoria

Johannesburg

Mimabatho

Mhabane

Nelsprut

Pietersburg

Messina

Kimberley

Cape Town

Calvinia

Upington

Port Nolloth

Mosselbaai

SOUTH AFRICA

FIGURE 4.1 | South Africa Map courtesy of Bruce Jones Design Inc.

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settlements were enclosing land and thus were infringing on the pastoral lands of the Khoikhoi, which caused tension and armed conflicts. In addition, the Khoikhoi population was small to begin with, and it was reduced further by death to diseases imported by the Europeans. Another problem confronting the Khoikhoi, on occasion, was the movement of Bantu-speaking Africans who were continuing their southern migration in search of better land. The Bantu were both farmers and pastoralists. As a result, tensions and armed conflicts occurred between the Bantu and Khoikhoi. In time, the Bantu would also be warring with the white farmers, who continued to move north in search of more land and water. The descendants of these Bantu people represent the vast majority of blacks in South Africa today.

During the French Revolutionary Wars (1792–1802), the British were concerned that Napoleon might seize Table Bay and disrupt their trade route to India. As a result, the British took control of the Cape settlement in 1795. Following the Treaty of Amiens (1802), which temporarily halted the conflict between France and Britain, the settlement was returned to the Dutch. When the terms of the treaty failed, the British seized the Cape a second time in 1806, and in 1814 the Dutch conceded their claims to the Cape.

The British proceeded to pass legislation that required all free blacks to carry a pass that indicated their place of residence and employment. If a person did not have a pass, they could be forced into work for a white master. Legislation also permitted discriminatory practices in the pay of blacks. Moreover, the British army was coming to the aid of the white farmers, who were called Boers (an Afrikaans word for farmer), in particular the Trekboers, who were migrating into the lands occupied by Africans. The British army expelled some Bantu settlements in bloody conflicts and attempted to establish a fixed frontier by settling 5,000 British immigrants on small farms. The Boers opposed both closing the frontier and creating British immigrant farming settlements. Not the least of their reasons was the scarcity of water and arable land.

In Britain, Parliament was working against the policies established in the Cape. First, they ended British involvement in the slave trade in 1807. Second, British missionaries petitioned Parliament to end the unfair labor practices directed at Africans, and this was achieved in 1828. Finally, Parliament abolished slavery throughout the empire in 1833. The Dutch speakers in the colony had opposed British rule in general and the aforementioned policy changes in particular. It was in 1836 that the Boers began to move incrementally out of the Cape area with the goal of settling beyond British control. This exodus would be referred to as the Great Trek and the people as Voortrekkers or pioneers.

During the 1840s and 1850s, these Voortrekkers established the Orange Free State and the South African Republic. Bloemfontein was selected as the capital of the Orange Free State, while Pretoria was the capital of the South African Republic. Each of these states created a constitutional government with an executive and legislature. The right to vote was limited to white males, which was not unusual in the Western world at that time. Those Africans who lived within these states were not allowed to own land and were not acknowledged as being equal in the law. By the end of the 1860s, the British had also established their dominance in two colonies, the Cape Colony and Natal. A number of Africans lived in the Voortrekker and British areas, but most continued to reside in traditional African communities that were ruled by kings and chiefs.

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The second half of the nineteenth century was marked by two themes. First was the discovery of minerals. Diamonds and then gold had a significant impact on the economy of the region. Those emerging industries not only employed whites, but there was a significant demand for African laborers, and they came from throughout southern Africa seeking employment, which created another tension from the more indigenous South African laborers. In order to assure the availability of cheap labor, the British reversed some of their policies of the late 1820s and early 1830s that were designed to treat blacks more equitably.

The town of Kimberley was established in the initial rush to the diamond fields. It would prove to be a model for what was to come regarding discriminatory practices against Africans. To illustrate, the pass law was reintroduced for the workforce, in particular the African laborers. The pass determined if the person was authorized to work in the city, what contractual obligations the person was under, and whether the person was entitled to leave the city. Special fenced compounds were constructed where the black laborers had to live during the tenure of their contracts. Courts were established for the sole purpose of handling pass law violators, and armed guards were employed by the mining companies to maintain order in the fenced compounds.

The second theme of the second half of the nineteenth century was the ongoing tension and fighting that occurred between the Afrikaner population and the British, or between an African community and one of the white settler groups. Time does not permit the identification or narration of the various battles. What is important to note is that it was during this period of tension and strife that the germ of an Afrikaner nationalist identity began to emerge.

The Afrikaner identity that emerged utilized a distinct view of their history in Africa and associated it with the Calvinist theology of the Dutch Reform Church. It is important to stress that this perception of the Afrikaner community did not take hold until the onset of the twentieth century. Moreover, it was not embraced immediately by a majority of Afrikaners. Part of the reason the nature of this identity did not take hold earlier was the original Dutch settlers were not terribly religious, nor were many literate. Over time they acquired the skills to read and write, but few if any were nuanced in the theological debates that were being carried out in the seventeenth-century Dutch homeland.

The early stages of this Afrikaner nationalist identity claimed that they had the right of conquest to the land in South Africa. Over time they had divorced themselves from their Dutch ancestors and viewed South Africa as their homeland. They considered themselves Afrikaner with their own distinct Afrikaans language. Part of the logic of this right of conquest was associated with the view that they were fulfilling a special mission of God. The roots of this theological perspective were traced to the seventeenth-century debate over the doctrine of predestination, a central feature of Calvinism and thus of the Dutch Reform Church. The doctrine held that God had already determined that some people would be saved while others would be damned. The Dutch had settled this matter in 1618 at the Synod of Dort, where the Dutch Reform Church embraced a conservative view of this doctrine. Thus, the Afrikaners considered themselves among God’s chosen people, which further enhanced the righteousness of their mission and their imagined superiority, in particular to other races.

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The dawn of the twentieth century was marked by the South Africa War (1899–1902), which was fought between the British and Afrikaners. While the British were victors in the war, the British government realized that the majority of whites in South Africa would remain Afrikaners. The government concluded that the four white colonies that existed at that time in South Africa (the Cape, Natal, Orange River, and the Transvaal) should create a single dominion state that would establish a parliamentary system of governance. Dominion meant that the state was granted self-governing status within the British Empire. Political power would be determined by majority rule, and each colony would determine who was eligible to vote. The Cape and Natal employed a property qualification, while the Orange River Colony and the Transvaal prohibited all blacks from the right to vote. Finally, it was determined that English and Dutch would be the official languages of the new state. This arrangement was changed when Afrikaans replaced the Dutch language in 1926.

From the onset, tensions arose over where the capital of the new Union would exist. A compromise was reached that was designed to allow at least three of the provinces to benefit. It was determined that Pretoria (Transvaal) would be the seat of the executive or administration; Cape Town (Cape Province) would be the seat of Parliament; and Bloemfontein (Orange River Colony) would be the location for the Appellate Division of the courts. This arrangement continues to exist to this day.

In 1910, the Union of South Africa was officially created. Shortly thereafter, legislation was approved that either legally condoned policies that were practices before the Union or established new laws designed to discriminate against Africans. For example, it was a criminal offense for blacks to strike, according to the Native Labor Regulations Act (1911). While the Mines and Works Act (1911) did not mention race or color, nevertheless, it was used to prevent blacks from competing with white workers for skilled jobs. Finally, the Natives Land Act (1913), which became a key component of future legislation in the apartheid era, regulated the ability of Africans to acquire land. Essentially, the law restricted black ownership of land to reserves that were set aside by the government. While blacks represented approximately 70 percent of the population, the reserves amounted to less than 8 percent of the land. Whites, on the other hand, accounted for less than 20 percent of the population but were accorded more than 90 percent of the land.

It should be noted that when the Natives Land Act was under consideration in Parliament, the South African Native National Congress (SANNC), which was founded in 1912, opposed the legislation. They even petitioned the British government to intervene; this effort failed, however. In 1913, this group was renamed the African National Congress (ANC). Also in 1912 in Bloemfontein, a group of Afrikaners founded the National Party. More will be said about both of these organizations shortly.

During World War I (1914–1918), there was a good deal of controversy among white citizens over whether their country should side with the British. As a British dominion, the South African government elected to send troops on behalf of the British. Many Afrikaners were opposed to this decision, in part because Germany provided aid to them during the South Africa War (1899–1902). Entry into the war enhanced the standing of the National Party among Afrikaners.

The issue of taking sides in World War II (1939–1945) was even more heated. Some favored entry on the side of the British; others wanted to support Germany; and some

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suggested neutrality. South Africa again ended up fighting on the side of the British. For those who favored supporting Germany, part of the appeal was associated with the German National Socialists movement, which emphasized German racial superiority. Within the National Party, there was a group committed to establishing a fascist society in South Africa.

During the war, a number of Afrikaners were held for antiwar activities. Of course, many white males were off fighting in the war. With the wartime demands in various industries increasing, there was a need to employ blacks in sectors previously reserved for whites. As a result, blacks began to work in urban areas, and squatter communities were created on the borders of various cities to accommodate them. This movement of Africans from rural to urban areas became a significant source of concern at the conclusion of the war, because such developments were at cross purposes with the ideology of segregation that existed both before and after the creation of the Union of South Africa. In fact, a few years before the outbreak of World War II, the South African Parliament approved the Natives Laws Amendment Act (1937), which was specifically designed to limit the size of the African urban population and to restrict their mobility. The National Party planned to address these issues in what would become known as the apartheid era.

This lengthy prologue to the Apartheid Era section of this chapter was designed to indicate that the discriminatory practices based on race had a long history before apartheid was introduced as the official and central policy of the South African government (see Byrnes, 1996; Fredrickson, 1981; Ross, 1993; Sparks, 1997a; Thompson, 1995). For those who are students of history, it also illustrates that many of these discriminatory practices that were present and thriving in South Africa could also be found in other areas of the world that were or had been colonized by white Europeans. Thus, the issue of racial supremacy was not unique to South Africa. Admittedly, it would receive a good deal of well-deserved adverse publicity and criticism throughout much of the second half of the twentieth century. It would be labeled a pariah state by a number of countries, including several that were not exactly paragons of virtue when it came to their own past and, at the time, current record on racial matters.

The Apartheid Era

The 1948 elections were to pit the United Party and the National Party against one another for control of the South African government. The United Party had the support of a signifi - cant number of English-speaking voters. It argued that total segregation was impossible. Although they were not supporting integration, they did acknowledge that African labor was needed in urban areas to assist with the various demands of South African industries. Moreover, they recognized that the extreme poverty on the African reserves was a significant factor drawing blacks to urban areas seeking employment.

The National Party’s support came almost exclusively from the white Afrikaans- speaking population. They strongly opposed the United Party’s position. They maintained that a policy that emphasized apartheid (Afrikaans for separateness) would protect white society from being overwhelmed by the superior number of blacks in the country. The National Party won the election and became the governing political party on June 4, 1948; it would not relinquish that political authority until May 9, 1994.

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The National Party was first led to victory by Daniel F. Malan, a former minister in the Dutch Reformed Church, who would serve as prime minister from 1948 to 1953. Malan had a two-pronged strategy that involved emphasizing both nationalist and apartheid policies. With regard to his nationalist strategy, he initiated efforts to divorce South Africa from the influence of the United Kingdom, some of which had a basis in law. To illustrate, the South African Citizenship Act (1949) established South African citizenship for the first time. Prior to this legislation, South Africans were not citizens of the country but rather subjects of the British Crown. This legislation was designed to protect the Afrikaner majority among the white population. In addition, South Africans had the right in law ultimately to appeal decisions in South African courts to the British Privy Council in London. The Privy Council is an ancient British institution that traces its origin to the early days of the monarchy. The majority of the functions of the Privy Council are handled by committees. The most important of these is the Judicial Committee that was established in 1833. It serves as the highest court of appeal for some independent Commonwealth countries and for overseas territories of the United Kingdom. In the South African context, this right of appeal ceased to exist in 1950 when the South African government made the Appellate Division of its Supreme Court the ultimate court of appeal in South Africa.

Malan was also active in introducing a number of pieces of legislation that were central features of the apartheid policy agenda. These included:

• Prohibition of Mixed Marriages Act (1949): Prohibited the marriage of whites with people of other races.

• Immorality Amendment Act (1950): Prohibited adultery, attempted adultery, and extra- marital sex between whites and blacks. Homes were invaded, people were arrested, and those found guilty were sentenced to jail, with blacks often given a longer sentence than whites.

• Population Registration Act (1950): Created a national register of the race of every person. Four distinct racial groups were identified: white, black, colored, and other. Linguistic and physical characteristics were often employed to determine a person’s race. This law was a central feature of apartheid.

• Group Areas Act (1950): Forced the separation of races by the creation of separate residential areas for whites, blacks, colored, and Asians/Indians. This led to the forced removal of people who for years had lived and worked in a neighborhood that had now been deemed both a residential and business area for a different race. This law was also a central feature of apartheid.

• Bantu Building Workers Act (1951): Enabled blacks to be trained in a building trade, which had previously been reserved for whites, but made it a criminal offense to perform the skill in an area that was not designated for blacks. Bantu refers to a black African.

• Separate Representative of Voters Act (1951): Removed those people identified as colored from the voting rolls.

• Prevention of Illegal Squatting Act (1951): Authorized the removal of blacks from public or private property and established resettlement camps for these displaced people.

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• Bantu Authorities Act (1951): Created black bantustans (homelands) and established regional authorities with the objective of permitting self-government in the homelands. Blacks were assigned a homeland that was based on their native group. It was not uncommon, however, for the records of one’s native group to be incorrect. This only added to the frustration confronting many blacks in general and families in particular. The political rights of blacks, which included the right to vote, were restricted to their homeland. This legislation essentially stripped blacks of any claim of the right to participate in the national government.

• Natives Laws Amendment Act (1952): Defined which blacks had the right to live in a town. Blacks who were born in a town and lived there continuously for 15 years or those who had been continuously employed for 15 years or who had worked for the same employer for 10 years met this criterion.

• Natives (Abolition of Passes and Co-ordination of Documents) Act (1952): Known as the Pass Laws legislation. In spite of the confusing wording in the title of this legislation, it forced blacks over the age of 16 years to carry identification with them at all times. Known as a dompas, the passbook had features similar to that of a passport. The pass included the person’s picture, fingerprints, place of origin, employment record, tax records, permission to be in an area of the country, and involvement with the police. If a black worker displeased his white employer, the employer might elect not to endorse the passbook. This could lead the authorities to expel the worker and his family and send them back to a bantustan. A black could not leave his homeland without a permit from a local authority, and once in an urban area, he or she had to secure a permit to seek work within 72 hours of his or her arrival. Moreover, it was a crime not to be able to produce the pass. Thousands of blacks were arrested and jailed, often for technical violations of this legislation. This law was also a central feature of apartheid, and of all the apartheid legislation, it was undoubtedly detested the most by blacks because of the disruption it caused in the lives of all family members and the ever-present fear that the authorities would discover either a significant or petty violation of the pass law rules.

• Native Labor (Settlement of Disputes) Act (1953): Prohibited black laborers from striking.

• Bantu Education Act (1953): Established the Black Education Department within the national Department of Native Affairs. This Education Department designed a curriculum that the national government felt was suitable for black Africans. The legislation limited the educational opportunities for blacks; it was specifically geared for teaching them skills that would enable them only to be employed in common laboring jobs under the direction of whites.

• Reservation of Separate Amenities Act (1953): Enabled segregation between whites and other races in the context of all public amenities, such as beaches, park benches, swimming pools, public toilets, theatres, cemeteries, public buildings, and public transportation. In white areas, restaurants and hotels did not admit blacks unless they were staff members. This law also applied to schools and hospitals. With regard to these two entities, the services for blacks were glaringly inferior to those found in the separate institutions provided for whites. This legislation was designed to reduce contact among

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the races by establishing signs that read: Europeans Only or Non-Europeans Only. For students of American history, this legislation was, of course, strikingly similar to that established in the United States, in particular but not limited to the Southern states.

• Public Safety Act (1953): Authorized the government to declare a state of emergency and to suspend all laws.

• Criminal Law Amendment Act (1953): Increased the penalties for opposition to a specific law. Anyone who was found accompanying a person found guilty of such an offense was also presumed guilty and thus had the burden to prove his or her innocence. Penalties could involve a fine, imprisonment, and whippings.

Obviously, this legislative agenda was all-encompassing in its ability to ensure the success of apartheid policies. The legislation that was specifically designed to control the residence and employment status of blacks required an enforcement strategy and necessitated the development of an extensive police force. Not only was there a significant increase in the size and powers granted to the police in white areas, but there was also a need to recruit more black police, in particular to work in the various townships that had developed on the borders of towns and cities and that had been expanding in number and size of population. Harsh police tactics would inevitably lead to protests and riots, which in turn sparked more police raids, in particular early morning raids that were designed to check on the status of one’s pass documents.

Daniel Malan was succeeded as prime minister by J. G. Strijdom, who served from 1953 to 1958. During his tenure, three additional pieces of apartheid legislation were enacted:

• Industrial Conciliation Act (1956): Reserved specific categories of work for members of racial groups. Under this legislation, whites were assured an increase in their rates of pay over that of non-whites.

• Native Administration Act (1956): Was an important feature of the government’s security legislation that enabled the authorities to exile blacks to remote rural areas of the country.

• Official Secrets Act (1956), along with the Customs and Excise Act (1955): Enabled the government to censor books, films, and other items that were either imported or produced in the country.

In addition, it was during this time that the government initiated a policy of forced removals. It was mentioned earlier that the Group Areas Act (1950) was designed to force the separation of races by creating separate residential areas for whites, blacks, colored, and Asians/Indians. This led to the forced removal of people who for years had lived and worked in a neighborhood that had now been deemed both a residential and business area for a different race. As mentioned, this law was a central feature of apartheid. The first major removal occurred in 1955 in Sophiatown, an old black settlement area in Johannesburg. The homes of approximately 50,000 blacks were leveled, and the people moved to an area southwest of the city that was to become part of a new planned township for blacks, hence the name Soweto. The area that was once Sophiatown became a white suburb. Other cities,

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like Durban and Cape Town, experienced significant forced removals. Moreover, this policy was not limited to blacks, for coloreds and Asians/Indians were also victimized. In some cases, even whites were moved; this was more apt to happen when the black homelands were created and in some cases expanded in size. This policy of resettlement would continue into the early 1980s. Thus, this was yet another issue that people, in particular blacks, were fearful of having to confront. It was also another illustration of the anger directed at the heavily armed police, who were called upon to maintain some semblance of order while the removals were being carried out.

Strijdom was also noted for his efforts to continue the process of decreasing relations with Britain. His ultimate goal was to have South Africa become a republic, but this did not happen during his tenure. He did move in the direction of having the South African Parliament acknowledged as the highest authority in the country. The emphasis on parliamentary sovereignty would limit the authority of courts in the realm of judicial review. It was also during his time as prime minister that a high-treason trial of 156 people was initiated. One of the accused was a lawyer, who was also a leader in the African National Congress, by the name of Nelson Mandela.

Strijdom was succeeded as prime minister by Hendrik F. Verwoerd, who had been a professor of applied psychology and had served as the minister of native affairs, which was the ministry largely responsible for implementing much of the apartheid legislation. He would serve as prime minister from 1958 until 1966, when he was assassinated in the South African Parliament by a parliamentary messenger who happened to be colored.

During Verwoerd’s tenure, only two pieces of legislation were added to the long list of apartheid laws:

• Extension of University Education Act (1959): Prohibited blacks from attending white universities and established a separate system of higher education for blacks, coloreds, and Asians/Indians. These institutions were inferior to those provided for whites, because the budget for higher education favored the white universities.

• The Promotion of Bantu Self-Government Act (1959): Classified black people into one of eight ethnic groups. Each group would develop a homeland that would be admin - istered independently from the white authorities. This included the establishment of hospitals, schools, and a police force. In light of the location of the homelands, which is some of the least favorable land in the country, and the inadequate resources earmarked for this endeavor, the idea was designed to fail from the start.

It was during Verwoerd’s administration that the Sharpeville massacre occurred. On March 21, 1960, people had gathered to protest the requirement to carry a pass book. Violence erupted, and the police killed at least 67 people, many having been shot in the back, and wounded an additional 186. This prompted work stoppages, various demonstrations, and peaceful marches. The government’s response was to declare a state of emergency, arrest roughly 18,000 demonstrators, and outlaw two of the leading black organizations, the African National Congress and the Pan Africanist Congress.

Another event that had historical significance in the apartheid chapter was the Rivonia Trial. On October 30, 1963, 10 defendants appeared in court, charged with sabotage. One

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defendant, Nelson Mandela, was already in prison serving a five-year sentence on another charge. The maximum sentence for the offense was the death penalty, which the Verwoerd government supported. The trial ended in June 1964, with eight of the defendants sentenced to life imprisonment; none were sentenced to death. This commenced the 27-year period of Nelson Mandela’s incarceration in the South African prison system, much of it spent on Robben Island, which is situated off the coast from Cape Town.

Finally, one of the things that Verwoerd was particularly noted for doing on the international stage was the withdrawing of South Africa from the British Commonwealth of nations and establishing South Africa as a republic. By 1960, a number of white South Africans were calling for the government to sever its ties with the Commonwealth. The National Party was, in part, motivated to proceed by the fact that the census indicated that there were more Afrikaners than British, which would assure them success once the matter was brought to the white voting public in a referendum. Government leaders considered establishing a republic as a method of unifying the country, clarifying South Africa’s con - stitutional position, and enabling it to deal with its internal issues without the concern over possible foreign intervention. Of course, Britain, having fought two world wars in the century, was not exactly in a position politically, militarily, or economically to intervene in the affairs of South Africa.

In addition, a number of African and Asian countries that were members of the Commonwealth and were seeking or had gained their independence were calling for South Africa’s removal from the organization in light of its apartheid policies. In addition, a large number of African countries were gaining their independence as the old colonial empires receded following the end of World War II. For example, in the 1950s, Egypt, Sudan, Tunisia, Morocco, Ghana, and Guinea became independent. In 1960 alone, Chad, Benin, Nigeria, Ivory Coast, Madagascar, Central African Republic, Mali, Niger, Senegal, Burkina Faso, Mauritania, Togo, Zaire, Somalia, Congo, Gabon, and Cameroon followed suit. From 1961 to 1966, Sierra Leone, Algeria, Burundi, Rwanda, Uganda, Kenya, Tanzania, Malawi, Zambia, Gambia, Botswana, and Lesotho would join this group. Finally, the establishment of the United Nations in 1945 was also a factor. One of its goals was promoting human rights and the recognition of certain fundamental freedoms irrespective of one’s race, sex, language, or religion. Obviously, such lofty ideals were at cross-purposes with the govern - ment of South Africa.

In early 1961, legislation was introduced to establish South Africa as a republic. In short order, the constitution was drafted and approved, and South Africa withdrew from the Commonwealth. The major constitutional change establishing South Africa’s first independent constitution was that the office of president would replace that of the British monarch as the ceremonial head of state. It is also important to draw attention to section 59 of the Constitution of the Republic of South Africa (1961). Part 1 proclaimed: “Parliament shall be the sovereign legislative authority in and over the Republic, and shall have the full power to make laws for the peace, order and good government of the Republic.” While retaining the parliamentary system of governance, this was a clear indication of South Africa’s independence from any foreign government. Part 2 stated: “No court of law shall be competent to enquire into or to pronounce upon the validity of any Act passed by Parliament. . .” This was a clear message to courts that judicial review would

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be limited and that parliament was supreme. This notion had been espoused by Prime Minister Strijdom; it now had the force of constitutional law. It enabled the government’s policy of white supremacy to continue unchecked in the South African courts.

As mentioned earlier, the South African government was receiving adverse publicity and criticism with the development of its apartheid policies. As an aside and in light of our more recent attitudes of condoning states interfering in the affairs of other states on the grounds of human rights issues, the question might be raised as to why Western democracies did not do more to stop the abuses of apartheid. One part of the answer has already been alluded to; that is, a number of countries had not fully addressed their own history or extant policies associated with racial discrimination.

The other more telling answer to the question has to do with the period when apartheid was established and implemented. It was the time of the Cold War, when the international world order was essentially dominated by a bipolar system in which most countries tended to side either with the United States and its allies or the Soviet Union and its allies for security purposes. The United States was espousing democratic principles, while the Soviet Union was attempting to advocate the virtues of a communist system of governance. Africa, with all of those emerging independent countries previously mentioned, was a prime area to engage people in the virtues of one side or the other in this ideological debate and at times war. Some African countries had already begun to embrace the communist ideals, while South Africa had a long history of opposing communism. In fact, the apartheid government banned the South African Communist Party through the passage of the Suppression of Communism Act (1950). In spite of its flaws, the South African government was on the side of the West, led by the United States in this matter. As such, criticisms of its domestic policies were often muted. Of course, this foreign policy attitude exists across the international community to this day. For example, a state secures the support of another state and befriends it on the international stage, but it also finds the domestic policies of that state at cross-purposes with its own values. Oftentimes the establishment and maintenance of friendships on the international stage with other states is considered so vital that it often trumps any discomfort a country might display toward the domestic policies of the befriended state.

Returning now to the situation in South Africa in the 1960s, Verwoerd, along with his successor, B. J. Vorster, who would serve as prime minister from 1966 to 1978, were noted for the harsh manner in which they enforced the apartheid laws. At a time when much of the world was at least embracing the idea of universal human rights, their brutal methods of enforcing the white supremacy agenda displayed a total disregard for the rule of law, as that term was understood in much of the Western democracies of the world. As an aside, it should also be noted that it was during Vorster’s tenure that the legislation prohibiting television was finally revoked in 1976. The government was of the opinion that this medium corrupted public morals.

During Vorster’s tenure, two additional pieces of apartheid legislation were enacted.

• Bantu Homelands Citizens Act (1970): All black people had to become citizens of the homeland associated with their ethnic group and had their South African citizenship excised.

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• Afrikaans Medium Decree (1974): Required the use of Afrikaans and English on an equal basis in all high schools outside the homeland areas. Thus, black high schools in the townships were mandated to follow this decree. This was another factor that contributed to student unrest in the townships and led to student protest marches and the destruction of a good deal of school property.

As previously mentioned, all the apartheid legislation required an enforcement strategy. The criminal law and legislation associated with the criminal justice system were important parts of the overall strategy designed to facilitate the objectives of the apartheid agenda. Two pieces of that kind of legislation have already been referenced. The Public Safety Act (1953) enabled the government to declare a state of emergency and to suspend all laws. The Criminal Law Amendment Act (1953) increased the penalties for opposition to a specific law, and those penalties could include a fine, imprisonment, and whippings.

There were other pieces of legislation that were designed to ensure the success of the supremacy of the white race in South Africa that had specific impacts on various components of the apartheid criminal justice system. They included:

• Riotous Assemblies Act (1956): Presumably enacted to prevent the gathering of groups that opposed the government’s apartheid agenda.

• Special Criminal Courts Amendment Act (1958): Established special courts to handle cases involving treason and violations of the Suppression of Communism Act (1950).

• Prison Act (1959): Stated that any unauthorized report of prison conditions was illegal. • Criminal Procedure Amendment Act (1958): Added robbery and housebreaking, when

committed under aggravating circumstance (i.e., a threat of serious bodily harm and/or the possession of a dangerous weapon) to the list of capital crimes. Until this legislation, only treason, murder, and rape were capital offenses.

• Unlawful Organizations Act (1960): Banned the African National Congress and the Pan African Congress.

• Sabotage Act General Laws Amendment (1962): Expanded the definition of sabotage to include strike actions; it permitted detention for up to 90 days without trial; and sabotage was made a capital offense. Moreover, the definition of terrorism was also extended to include acts that endangered law and order, public safety, and health; placed in jeopardy the food, water, fuel, and power supply; and obstructed medical and muni - cipal services. Finally, it indicated that those who trespassed on any land or building or who destroyed private or public property could also be charged with terrorism.

• Criminal Procedure Amendment Act (1965): Enhanced the period of detention without trial from 90 to 180 days and made kidnapping and child stealing capital crimes.

• Terrorism Act (1967): Authorized the indefinite detention of people who were not accorded the right to a trial. It also created the Bureau of State Security (BOSS), which was charged with the internal security of the country.

• Abolition of Juries Act (1969): Abolished trial by jury completely. • Internal Security Amendment Act (1976): Enabled the detainment of a suspect for an

indefinite period of time without the need to consult a judge.

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• Internal Security Act (1982): Permitted a magistrate, who believed the public peace was threatened, to prohibit the gathering of people for a period of up to 48 hours.

Obviously, this legislation, when coupled with the apartheid laws, made all the agencies and the vast majority of the agents of the South African criminal justice system complicit in the objectives of the apartheid regime. As an aside, the military was also involved in objectionable behavior and tactics directed at opponents of apartheid. While the military is not the focus of this chapter, it should be noted at the very least in passing.

During this period there was not only a significant increase in the size and powers granted to the police, but there was also a need to recruit more black police, in particular to work in the various townships that had developed on the borders of towns and cities and that had been expanding both in number and size of population. Harsh police tactics were inevitably employed, which led to protests and riots. This, in turn, sparked more police raids, in particular early morning raids that were designed to check on the status of the inhabitants’ pass documents. The staff assigned to jails and prisons were often more than willing to administer additional harsh treatment toward the inmate population, in particular those being held for trial or convicted of allegedly violating the rules associated with the apartheid agenda. Finally, the recruitment of attorneys as prosecutors and judges was also determined by their commitment to the apartheid agenda. While they may have pledged their service to uphold the law, it was a seriously corrupted version and application of that term that did not embrace the principals usually associated with the rule of law. As such, they were supporting a system associated with rule by law.

It was mentioned earlier that the administrations of Verwoerd and Vorster often employed harsh tactics to enforce the apartheid laws. The principal reason for this was blacks began to protest the government’s agenda and to resist its tactics. Three organizations played significant roles in these endeavors.

The first of these was the African National Congress (ANC), which was initially formed in 1912 as the South African Native National Congress, but changed its name in 1923. The purpose of the organization was to protest the unequal discriminatory treatment of blacks that was highlighted in the early years of the Union of South Africa by the Natives Land Act (1913) (explained earlier). The leaders of the Congress sought a dialogue with the British that emphasized equal treatment for all races. Unfortunately, London, while somewhat sympathetic to their plight, was unwilling to interfere, and indicated that the issues raised by the Congress needed to be resolved in South Africa.

By the mid-1940s, a younger generation of blacks were demanding a more proactive strategy on the part of the ANC. They were calling for the introduction of acts of civil dis - obedience at a time when the National Party commenced its apartheid agenda. The types of civil disobedience included strikes, boycotts, and refusing to cooperate with the implementation of the apartheid policies. It was also at this time that the leadership of the ANC admitted some of the young proponents of this strategy to their executive committee. Those selected were Nelson Mandela, Walter Sisulu, and Oliver Tambo. Each of these men was to play a leading role in the ANC and the eventual demise of apartheid.

The ANC would continue their nonviolent opposition to the apartheid regime into the 1950s. They supported the establishment of a Council of the Congress of the People, which

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would represent all the people in South Africa, and drew up a document that would espouse democratic ideals for the future of South Africa. This document was the Freedom Charter, which was adopted in June 1955. The preamble to the Charter stated:

We, the People of South Africa, declare for all our country and the world to know: that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people; that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality; that our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities; that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief; And therefore, we, the people of South Africa, black and white together equals, Countrymen and brothers adopt this Freedom Charter; And we pledge ourselves to strive together, sparing neither strength nor courage, until the democratic changes here set out have been won.

The Charter then spelled out what it envisioned for a democratic South Africa. It pronounced that the people shall govern; all national groups shall have equal rights; the people shall share in the country’s wealth; the land shall be shared among those who work it; all shall be equal before the law; all shall enjoy human rights; there shall be work and security; the doors of learning and culture shall be opened; there shall be houses, security, and comfort; and there shall be peace and friendship.

Not all members of the ANC embraced all the objectives spelled out in the Charter, because some of the language was too socialist for their taste. Opposition to communism was not limited to members of the National Party, as a significant number of blacks also opposed it. Nevertheless, a number of the demands associated with racial equality that were cited in the Freedom Charter would appear years later in the new Constitution of South Africa. The Freedom Charter is revered as an important document in the black struggle within South Africa.

It should be noted that a number of white communists would become influential members in the ANC. When the Suppression of Communism Act (1950) was enacted, the ANC straightaway protested the legislation. The Act defined communism very broadly, that is, any effort “at bringing about any political, industrial, social, or economic change within the Union by the promotion of disturbance or disorder” was deemed communistic. The minister of justice was responsible for the identification of such organizations and for banning them. The minister was further authorized to identify members who could be banned from public office, public meetings, and prohibited from specific areas of South Africa. The ANC had good reason to object to this legislation, for it was frequently used as a justification to search people’s homes and businesses and to arrest them. On a number of occasions, leaders, such as Nelson Mandela, were subjected to such harassment based on the Suppression of Communism Act (1950). The use of this law was yet another factor that caused Western democracies to withhold support for the cause of the ANC during the 1950s, 1960s, and 1970s.

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Another organization that identified with the ANC was the Congress of Democrats. It was a white radical antigovernment group established in 1952. They illustrated to black members that not all whites were supportive of the apartheid regime. The influence of whites in the ANC helped precipitate a split within the ANC. Some members felt that the ANC was at times not catering to the interests of blacks. Those who were disgruntled formed the Pan-Africanist Congress (PAC) in 1959. It was the PAC that organized the campaign against the pass laws in 1960. This, in turn, led to the demonstrations outside the Sharpeville police station and the subsequent deaths and assaults that were mentioned earlier. As a result of Sharpeville, work stoppages and demonstrations followed. The government of Prime Minister Verwoerd declared a state of emergency; arrested an estimated 18,000 people, including the leaders of the ANC and PAC; and banned both organizations.

The banning of the ANC led to a significant shift in its strategy and the development of Umkhonto we Sizwe, the Spear of the Nation. The Spear of the Nation would become the militant wing of the ANC. The PAC would also develop a militant wing, Poqo (Pure), which was limited to blacks. While the ANC’s wing tried to avoid taking human lives, the PAC wing was committed to a reign of terror that was directed not only at whites but also some blacks. The government was able to disrupt these early efforts at militancy by utilizing a heavily armed police force and various units from its military. John Vorster, the minister of justice, who was responsible for the government’s response following the Sharpeville massacre, also orchestrated the defeat of these militant wings. It was for these efforts that he was selected to succeed Verwoerd following the assassination. Moreover, both of these militant wings would regroup and eventually provide guerilla soldiers for the ANC and PAC.

Brief mention should also be made of two additional groups. With the ANC and PAC officially banned, and many of the leaders either imprisoned or in exile, a group of black university students formed the South African Students’ Organization (SASO) in 1969. The leader, Steve Biko, was a medical student who was drawn to and influenced by the black power movement in the United States. He maintained that the black protest organizations had relied too much on the leadership of white liberals. He favored blacks running their own organizations. He also criticized the use of violence by the ANC and PAC and emphasized a nonviolent strategy. Biko and other black consciousness leaders were subsequently arrested for their activities in 1977, and he was found murdered in his cell.

The other organization that should be acknowledged was the Progressive Federal Party, which was the small opposition political party in the South African Parliament. While the majority of whites had supported the National Party, approximately 20 percent did not. The Progressive Federal Party served to voice their objections to the policies of apartheid in the parliament.

Vorster’s tenure as prime minister would end in 1978. He was succeeded by P. W. Botha, who would serve as leader until 1989. During Botha’s tenure, a constitutional change was made in 1984 in which the office of prime minister was abolished and the office of president became the chief executive of the country, similar to that in the United States. Under Botha, some of the policies of apartheid began to change. For example, the rules associated with the Group Areas Act were not strictly enforced, and interracial marriages were legalized, but Botha continued to oppose granting blacks’ political rights. It was during

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his tenure that Nelson Mandela was removed from the prison on Robben Island and transferred to Pollsmoor Prison in 1982. The government was interested in beginning negotiations with the ANC, and they started to do this with Mandela. Mandela and Botha would meet for the first time in July 1989. Nothing was substantively accomplished, as it was more of a courtesy visit. Having suffered a stroke earlier, Botha resigned the presidency a month following that meeting.

Botha was succeeded by F. W. de Klerk. De Klerk remained leader of the National Party until 1997. He negotiated the laborious and painstaking transfer of power and the total dissolution of the apartheid regime. He would serve as president until 1994, at which time Nelson Mandela was sworn in as president of the new South Africa. Along with Thabo Mbeki, another future president, de Klerk served as a first deputy president to Mandela from 1994 to 1996.

There were many reasons that contributed to the negotiations between de Klerk and Mandela being characterized as laborious and painstaking. Obviously, the policies of the National Party over the course of some 40 years and the tactics employed by the leadership of that party did not lend itself to trust by Mandela and the ANC. For their part, the white apartheid regime was fearful of what the future held for them and all white people in the country. After all, the ANC had been banned as a terrorist organization, and some of its leaders arrested and convicted as terrorists by the courts. Some Afrikaners were either in a state of denial or suffered from a severe self-induced state of amnesia regarding apartheid’s terrorist agenda directed at all South Africans who were not white. The fear expressed by a number of whites, however, was an acknowledgement that blacks would be justified to strike at the white minority for the manner in which blacks, in particular, but also coloreds and Asians/Indians, had been treated under apartheid. Concern was also felt by some that South African whites might be subjected to some of the tactics employed in Zimbabwe by the government of Robert Mugabe, in particular the cases of harassment and even murder of white farmers and the eventual dispossession of their land.

While both of these perspectives were real and justified from the point of view of the two camps, what was particularly troubling at the time was the level of violence that was occurring in the country, particularly in the black townships. It might be useful to paint a picture of a typical township for this purpose. As mentioned earlier, the government began to develop many of these townships in the 1950s as a result of the forced removals called for by the Group Areas Act (1950). While the government was responsible for constructing some of the early small cinder-block residences that consisted of three or four very small rooms, these structures did not include indoor plumbing or electricity. As such, people had to rely on community toilets and communal taps for fresh water. Moreover, there were few paved roads. Over time, as more people from the rural areas moved to the urban areas seeking employment, and some Africans migrated over the South African border in search of employment, these townships grew considerably. The new arrivals frequently constructed shacks that were made of pieces of metal, wood, cardboard, and in more recent times, sheets of plastic.

In addition to the aforementioned conditions, the government established poorly equipped hospitals that provided inferior health care. The schools were also inferior to those provided for whites. The buildings were poorly equipped, teaching materials substandard,

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and many teachers were poorly trained. This contributed to the dropout rate among young people, in particular at the high school level. Moreover, the heavy-handed tactics of both black and white police in enforcing the apartheid laws only added to the tension and frustration of the township residents. Many black children feared white people in general based on their only contact with them, that is, the white police. While a number of whites were totally oblivious to these conditions, having never ventured into the townships, the residents of the townships, who could secure employment as maids or gardeners in the affluent white neighborhoods, were reminded daily of the gross inequities.

Throughout the 1960s and into the period of negotiating the transitional settlement, violence was a normal part of everyday life. This included seeing people murdered in the townships. The horrible living conditions helped foster this frustration, along with the high levels of unemployment, which in turn led to people having nothing to eat. The level of malnutrition among children was particularly noticeable. Some people would do almost anything to survive. Such conditions lent themselves to the emergence of tsotsis (gangs). As is often the case even today, these gangs preyed on other residents of the townships. A frequent tactic was to assault and rob people of their money on pay day. This situation helped to enhance varying degrees of suspicion and distrust among the residents. It is worth interjecting at this time that many of the homeland groups retained a strong belief in superstitions, which included witchcraft. Some people attributed their bad luck, illness, and unemployment to witchcraft. In addition to the distrust directed at black police officers, there were also levels of apprehension toward people that were labeled impimpi (informers) to the police and other white authorities. It was not uncommon for people accused of witchcraft or of being informers to be necklaced. Necklacing involved taking a tire that had been soaked in gasoline, placing it around the accused’s shoulders, and then setting the tire on fire.

Throughout the 1970s and 1980s, students within the townships frequently protested the various policies of apartheid. At times, the schools were closed for extended periods of time. Some students never returned to school, which increased the problem of illiteracy among blacks, which remains a problem to this day for many black South Africans who find it difficult to secure employment. Some of these dropout students sought employ- ment; others joined the ANC abroad and trained as guerrillas for future actions against the apartheid regime; some left school because they were pregnant; and others elected to join radical gangs that were formed to destroy the government structure in the townships. This last group spent a good deal of their time recruiting other students to participate in their protest efforts, which frequently led to violent clashes with the heavily armed police. Failure to comply could lead to the student being necklaced. Those members of the Zulu group were frequently at cross-purposes with these radical youth gangs. As such, they often attacked these youths with their spears, clubs, and machetes; they would also attack students at schools, because they considered schools the breeding grounds for the more radical youth gangs (Mathabane, 1986; Mathabane and Mathabane, 2000).

Brief mention should also be made of the Inkatha Freedom Party and their position, which contributed to delays in negotiating a transitional settlement. Inkatha was led by Mangosuthu Gatsha Buthelezi, the chief minister of the KwaZulu homeland. It was a conservative movement that supported Zulu cultural patriarchal traditions. Their policy was

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to continue to work within the present system in their opposition to apartheid. Members of Inkatha frequently clashed violently with members of the ANC in the KwaZulu homeland and in various townships. It would be learned later that a group of senior officials within the South African police had trained Inkatha squads and provided them with weapons to create violence in the townships and to disrupt efforts to secure an accord between the government and the ANC. Finally, it should be noted that the South African Institute of Race Relations indicated that death as a result of political violence claimed 2,672 lives in 1991, 3,347 in 1992, and 3,706 in 1993 (South African Institute of Race Relations—Annual Reports, 1991–1992 and 1993–1994).

When South Africa came out of this disturbing phase in its history and embraced the goal of establishing a democratic system of government that was based on principles associated with the rule of law and that was opened to all South Africans, irrespective of the color of their skin, a good deal of work was required to change the hearts and minds of all the people of the country. The most difficult area of government that needed reform was the criminal justice system. It appeared to be an impossible task in light of the institutional history of these justice agencies under apartheid. The greatest issue confronting the various components of that system was the need to convince the citizens of the country that they were capable of dramatic change and that they could be trusted to serve and protect the rights of all the citizens of the country.

GOVERNMENT South Africa and Russia are two countries covered in this book that lend themselves to some interesting comparisons and future monitoring. Russia developed its socialist legal system throughout the twentieth century to advance the mission of the Communist Party, whereas South Africa’s legal system was subverted during the apartheid era to establish and enhance the policies of the National Party. Both relied heavily on agents of their criminal justice systems to carry out the respective agendas of the communist and apartheid regimes. While Russia abandoned communism late in 1991, South Africa officially renounced apartheid in 1994. What makes these two countries ideal for comparison is that both serve as illustrations of nation states that have proclaimed a goal of transforming their method of governance to a democratic format and in varying degrees have implemented strategies to achieve this objective.

In the South African context, reference has already been made to the lengthy discussions and negotiations carried out between Nelson Mandela on behalf of the ANC and F.W. de Klerk for the government to reach a settlement that would move the country forward during the initial post-apartheid period and that would work toward establishing a peaceful and unified country for all the people of South Africa. The negotiations were carried out during the early 1990s during a period of unrest. A good deal of violence occurred between the ANC and the Inkata Freedom Party. There were allegations of police brutality in the townships, and evidence was uncovered that death squads operated within the security services. In 1990, Mandela announced the end to the ANC’s armed struggle against the government. President de Klerk continued to lift apartheid restrictions and ordered the police to cease activities that were designed to enhance the politics of apartheid. In 1991, he also

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appointed Justice Richard Goldstone to chair the Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation (often referred to as the Goldstone Commission). The Commission’s mandate was to investigate acts of violence or intimidation after July 17, 1991, the date when the Commission was established, up to the 1994 general election. In light of these efforts there were calls by some conservative South Africans for de Klerk to resign from the presidency.

In September 1991, the National Peace Accord was signed by representatives of the national and homeland governments along with all major political parties and other organizations. Unfortunately, violence would continue throughout 1992. Nevertheless, negotiations continued and resulted in a call for an interim coalition government and the establishment of an all-party congress that would be responsible for developing principles on which a new constitution would be based. By November 1993, a draft interim constitution was approved that called for a five-year transitional government. Among the features that were hammered out in this interim constitution included one sovereign state with a sovereign constitution, a set of principles and basic values, a bill of rights, a constitutional court, an electoral system based on proportional representation, a government of national unity, a constitutional assembly to finalize the constitution, the establishment of nine provinces with both executive and legislative functions, a system of municipal government, and the recognition of 11 official languages (De Klerk, 2000; Mandela, 1995; Sampson, 1999; Sparks, 1997b).

An important and somewhat overlooked feature of the negotiated settlement and transition government was the recognition on the part of the ANC that they did not have nearly enough qualified people to fill many key civil service positions. In addition, Nelson Mandela did not want to alienate segments of the white population at a time when he was attempting to establish a government of national unity. As such, part of the negotiated settlement was that civil servants, who for the most part were Afrikaners, would retain their jobs for at least five years. Moreover, it was noted that even when mid-level management vacancies did occur during this period, they were often filled by promoting whites within their respective departments. This decision was helpful and contributed to the orderly transition of governmental power. Efforts to implement a more proactive affirmative action program did not take place until Thabo Mbeki assumed the presidency in 1999.

Unfortunately, some people, whites in particular, with the technological training and organizational skills that South Africa so badly needs, were leaving the country. This was having an adverse impact on the professional class. The reasons offered are that they saw a bleak future for their own employment prospects and advancement and were very concerned about the future opportunities for their children. Moreover, some were emigrating because of the crime problem.

In April 1994, national elections were held. A total of seven political parties won seats in the National Assembly. The African National Congress won 62.6 percent of the vote, the National Party garnered 20.4 percent, and the Inkata Freedom Party secured 10.5 percent. Nelson Mandela was unanimously elected president by the National Assembly. Two deputy presidents were selected: Thabo Mbeki, an ANC leader and future president, and F. W. de Klerk, the former president.

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The creation of a new South Africa was significant—a remarkable feat in light of the country’s brutal white supremacist past and the significant violent unrest that was occurring during the negotiations. Some people were fearful that the country might become engulfed in a civil war. There were many skeptics who did not think an agreement could be reached on a new system of government, let alone the holding of a democratic election that would be certified as both free and fair by outside observers. The mantra for much of the political and private-sector leadership in the country and for all people of goodwill was ubuntu. In the preface to the Promotion of National Unity and Reconciliation Act (1995), it states “that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization.” Ubuntu means humaneness. It is a hopeful philosophy of life that has deep roots in the culture of the native people. It emphasizes compassion and respect for humanity and solidarity as a group.

Truth and Reconciliation Commission

The Government of National Unity established the Truth and Reconciliation Commission (TRC) when it assented to the Promotion of National Unity and Reconciliation Act (1995). The TRC was set up to address gross violations of human rights that occurred between 1960 and 1994. Thus, the TRC’s mandate was not limited to abuses perpetrated only by those in support of the apartheid government, but it also included offenses committed on behalf of the struggle against apartheid. The term “gross violations of human rights” was defined as “the violation of human rights through (a) the killing, abduction, torture, or severe ill-treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command, or procurement to commit an act referred to in paragraph (a).” These terms are further defined and found in appendix 1 of volume 1 of the TRC’s Report.

Three committees were created to carry out the work of the TRC. The Human Rights Violations Committee was authorized to investigate human rights abuses. As such, they identified victims, considered the extent of the harm caused, and determined whether the abuse was the result of planning on the part of the state, an organization, a group, or an individual. The Reparation and Rehabilitation Committee was tasked with the responsibility to provide victim support for those victims of human rights violations that had been identified by the Human Rights Violations Committee. The specific goal of the Reparation and Rehabilitation Committee was to assist the efforts to restore dignity to the victim and to develop policies and recommendations on rehabilitation for the victims and healing for the greater community. Moreover, a fund was established to pay reparations to victims. The Amnesty Committee was responsible for considering the applications for amnesty. Applicants were people who, either by acts of commission or omission, were involved in incidents that had a political objective between March 1, 1960 and May 11, 1994. The granting of amnesty meant that the perpetrator was free from prosecution for the act or acts that the person freely confessed as a participant before the committee.

While a number of South Africans supported the efforts of the TRC, there were people who opposed the Commission and its work. In reference to public opinion, more blacks than whites considered the TRC a good thing. More blacks also viewed the TRC as fair, while more whites found it to be biased. Although the perceived success of the TRC was

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mixed, it was noted by most as an attempt to facilitate the healing process and the call to unity for all South Africans (see Fullard and Rousseai in Daniel, Habib, and Southall, 2003; Krog, 1999; Sachs, 2009; Theissen, 1999; Tutu, 1999).

The Constitution

The Constitution of the Republic of South Africa (1996) was assented to in December 1996. The interim constitution would be replaced officially on February 4, 1997. The new Constitution of the new South Africa consists of 14 chapters and 243 sections, and it reflects the philosophy of ubuntu from the outset. For example, the Preamble proclaims:

We, the people of South Africa, Recognize the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to— Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people. God bless South Africa.

Chapter 1 of the Constitution is devoted to founding principles that are reflective of ubuntu. The first three are particularly telling in light of the country’s history. To illustrate, section 1 states:

The Republic of South Africa is one, sovereign, democratic state founded on the following values: a. Human dignity, the achievement of equality and the advancement of human rights

and freedoms. b. Non-racialism and non-sexism. c. Supremacy of the constitution and the rule of law. d. Universal adult suffrage, a national common voters roll, regular elections and a

multi-party system of democratic government, to ensure accountability, responsive - ness and openness.

Section 2 indicates that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” And section 3 proclaims in part: “(1) There is a common South African citizenship.

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(2) All citizens are—(a) equally entitled to the rights, privileges and benefits of citizenship; and (b) equally subject to the duties and responsibilities of citizenship.” Both the Preamble and the founding principles of the Constitution can also be traced back to the ideas espoused in the Freedom Charter of 1955.

Chapter 2 of the Constitution is devoted to the Bill of Rights. This is a lengthy chapter listing a number of rights that not only reflect the country’s past but also illustrate the time period in which the document was enacted. Clearly, since the end of World War II, a number of rights that are often associated with human rights have increased significantly. Some of these rights have been proclaimed in law and clarified in court decisions, while others are aspirations that the country is seeking to fulfill.

Section 7 states: “(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfill the rights in the Bill of Rights.” Section 8 points out that “[the] Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.” The Constitution lists and elaborates on a series of rights found in the Bill of Rights. These include equality before the law; acknowledgement of human dignity; the right to life; freedom and security of the person; prohibition of slavery, servitude, and forced labor; right to privacy; freedom of religion, belief, and opinion; freedom of expression; the right peacefully to assemble, demonstrate, picket, and petition; freedom of association; freedom of political rights; prohibition to deprive one of citizenship; freedom of movement and residence; freedom of trade, occupation, and profession; the right to fair labor practices; rights and responsibilities to protect the environment; the right to property; the right to adequate housing; the right of access to health care, food, water, and social security; several rights associated with the care of children that are in a child’s best interests; the right to basic education, including adult basic education; the right to use the language of their choice; the right of people to enjoy the cultural, religious, and linguistic community of which they belong; the right of access to information; the right to just administrative action; the right of access to courts; and certain rights associated with the arrest and detention of accused persons. More will be said of this last right in the section of the chapter devoted to the law.

Scholars and others have been fond of grouping the notion of rights into three categories. The first category is associated with civil and political rights and is associated with the notion of the rights of a free citizen. The second category concerns entitlement rights, which frequently deal with social and economic issues, such as education, health, housing, and welfare. Finally, the third category is often more future- and group-oriented and concerned with such issues as the environment and peace. The difficulty confronting many countries, like South Africa, that include in their constitutions the second and third categories of rights is the extent to which such rights can be enforced. This usually places courts in a difficult position because they do not have control over the budget of the government that determines spending priorities that impact funding directed at such rights as education, health, housing, and welfare. As such, some consider many of the rights that fall into categories two and three as aspirational rights (Kende, 2009; Sachs, 2009).

The South African Bill of Rights does acknowledge that limitations may be placed on the aforementioned rights. Section 36 states “rights in the Bill of Rights may be limited

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only in terms of law of general application to the extent that the limitation is reasonable and justifiable. . . .” Constitutional Court decisions have clearly acknowledged that limitations may also be impacted by the availability of resources. It should also be noted that section 37 addresses the issue of states of emergency. It is in that context that the Constitution contains a list of nonderogable rights that cannot be restricted, which include the right to life, the right to dignity, and the right to be free from discrimination associated with race, color, ethnic or social origin, sex, religion, or language.

Parliament

Parliament consists of two houses: the National Assembly and the National Council of Provinces, and they are responsible for legislative matters associated with the national government. Section 44 indicates that when exercising its legislative authority, parliament “is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.” Parliament is located in the city of Cape Town.

National Assembly

According to the Constitution, the National Assembly must consist of at least 350 but no more than 400 members. It is presently composed of 400. Criteria for eligibility to serve in the Assembly are South African citizenship and having achieved the voting age of 18. The National Assembly is elected for a term of five years. All elections are determined by proportional representation. This is achieved by having each political party rank order their candidates for the National Assembly. Voters then cast their vote for a political party. The percentage of votes cast for a party determines the number of members that party will have in the National Assembly. The National Assembly has four principal responsibilities: to serve as a public forum to discuss issues, to pass legislation, to select the President of the Republic of South Africa, and to provide oversight of the executive.

National Council of Provinces

South Africa consists of nine provinces. The National Council of Provinces is composed of a delegation from each province, and each delegation consists of 10 members with the premier of the province heading the delegation. Thus, the National Council consists of 90 members. Proportional representation is also employed to determine the composition of the delegation from a province; that is, membership is based on the percentage of seats held by a political party in the provincial legislature. The National Council considers and votes on all legislation before the Parliament. They may also introduce legislation falling in specific areas identified in schedule 4 of the Constitution, which refers to functional areas of concurrent national and provincial legislative competence.

President

The president is the head of state and leader of the national executive, which consists of the president, deputy president, and the cabinet. At the initial meeting of a newly elected

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National Assembly, members must elect a person from among its members to serve as president. The actual candidates for the office are the leaders of the various political parties represented in the Assembly. The holder of the office of president is limited to not more than two terms. The executive branch of government is located in the city of Pretoria.

In addition to the duties of promoting the unity of the nation and upholding and defending the Constitution, the president has several specific responsibilities. Among the most significant are: selecting a cabinet, promoting a legislative agenda that reflects the administration’s policy objectives, signing legislative bills into law, serving as commander in chief of the military, summoning a parliament or individual houses of parliament for an extraordinary session, and sending a bill back to the National Assembly with questions regarding its constitutionality. On this last responsibility, it is interesting to note, especially from an American perspective, that the president may seek the opinion of the Constitutional Court on the constitutionality of a bill that is or has been considered in parliament.

The deputy president assists the president in the executive functions of the office. The person is selected by the president from members of the National Assembly. The deputy president is also a member of the president’s cabinet.

The Cabinet

It is the responsibility of the president to select members from the National Assembly to serve as members of the cabinet. The president, through the cabinet, is responsible for developing and implementing national policy, preparing and initiating legislation in parliament, and coordinating and managing the various departments of the national government. The president selects one of the cabinet members to serve as the leader of the government in the National Assembly.

Presently, the cabinet consists of 34 departments. Some areas of focus are common in any national administration, such as international relations, defense, justice, finance, health, and agriculture. In addition to justice, the police and correctional services are each represented in the cabinet as distinct departments. Some departments are designed in part to rectify past inequities and to establish policies committed to addressing those issues, such as arts and culture, basic education, higher education, human settlements, rural development, and social development. The cabinet also includes a department for women, youths, children, and people with disabilities.

Political Parties

As a result of the 2014 election, there are 13 political parties represented in the National Assembly. They are listed here in the order of the number of seats secured, which is based on the percentage of votes cast for the party: African National Congress (249), Democratic Alliance (89), Economic Freedom Fighters (25), Inkatha Freedom Party (10), National Freedom Party (6), United Democratic Movement (4), Freedom Front Plus (4), Congress of the People (3), African Christian Democratic Party (3), African Independent Congress (3), AGANG SA (2), Pan Africanist Congress (1), and African People’s Convention (1). It is important to note that nine of the parties only have a combined total of 27 seats in the Assembly of 400.

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The most serious concern among students of South African politics in general and democratic government in particular is that there is only a single dominant political party in the country. Unlike many democratic systems of governance, there is presently no political party in opposition that has a realistic chance of assuming the mantle of leadership in the government. Most people view a strong party in opposition with the potential of assuming the leadership as a healthy approach to democratic governance. The fear is that a party in power for an extended period may become arrogant and abusive of its power and com- placent in its achievements at the expense of issues that need attention. Such a party may lose touch with the needs and aspirations of the people that put them in power. Of course, there are examples of political parties that were in power for extended periods of time that did not appear to threaten the democratic system of governance. To illustrate, the Social Democratic Party of Sweden was in power for a considerable period of time during the twentieth century, and the Liberal Democratic Party of Japan has often been the majority party since the end of World War II. The principal political parties of South Africa are identified briefly below.

African National Congress

Since the establishment of the new South Africa, this has been the largest of the political parties in the country. It has won the majority of seats in each of the national elections in 1994, 1999, 2004, 2009, and 2014. As was mentioned earlier, the ANC was founded in 1912 as the South African Native National Congress (SANNC) and changed its name to the ANC in 1923. While the ANC has always been an advocate for black South Africans, it encouraged all races to join in its efforts to oppose apartheid, and a number of coloreds, whites, and Asians/Indians joined. It was declared an illegal organization in 1960, and in the following year, the ANC established an armed wing of the organization, the Spear of the Nation, to fight a guerrilla war against the apartheid regime. This would lead many of its leaders to be branded terrorists.

As such, the history of the ANC was one of an organization in opposition and at times a revolutionary movement. It was not a true political party, because for the first 80 odd years of its existence it was prevented from participating in the national political process. Moreover, the previous 30 years had been spent in political exile. Some questioned whether the ANC would be able to transform itself from a national liberation movement into a political party that could function within the context of an electoral process. Nevertheless, it became the country’s dominant political party in the 1994 election and continues to hold that position.

The Freedom Charter that was mentioned earlier and created in 1955 espoused such objectives as establishing a country in which all people would have equal rights and opportunities and enjoy the protection of various human rights. The Freedom Charter statement remains the ANC’s guiding policy document. Since assuming political office, two of the principal goals of the ANC have been to expand the economy and to reduce poverty. This has led them to work closely with the business community to improve the economic climate in the country. While a number of good people within the ANC are committed to helping the poor, there has been a concern unfortunately both within the ANC

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and from its critics that too many ANC insiders have focused on their own self-enrichment. No doubt, this proves that the ANC is no longer a revolutionary movement but a mainstream political party.

Democratic Alliance

Democratic Alliance is the latest iteration of a liberal centralist group that favors free market principles. It is the heir to the Progressive Federal Party and then the Democratic Party that supported the abolition of apartheid and sought the establishment of a democratic state that protected the human rights of all. The Democratic Alliance was created in 2000. It favors a free market economy rather than the nationalization of industries. Since the establishment of the new South Africa, it has been a consistently vigorous opposition party that has been loyal to and supportive of the present constitutional system of government. Nevertheless, it has been highly critical of the manner in which the ANC has handled such issues as crime, education, health, and the economy.

Economic Freedom Fighters

Some people within the ANC have been frustrated with the government’s inability to address, or lack of significant progress in addressing, a number of social and economic issues that have confronted the black community both before and since the end of apartheid. As such, they have broken away and formed new political parties. The Economic Freedom Fighters (EFF), formed in 2013, is the latest iteration of that movement. Members of this party view themselves as revolutionaries for the workers. The founder is Julius Malema, who was the head of the ANC’s Youth League until he was expelled from the party in 2012. Characterized for his revolutionary charisma, Malema’s long-standing position is reflected in the platform of the EFF, that is, to nationalize the mines and redistribute white farmland without any compensation.

Inkatha Freedom Party

This is a Zulu-based political party and has been a rival to the ANC in terms of attracting the votes of the black community. It was established in 1922 and played a role in creating and participating in the National Unity government of 1994. It has focused its goals on improving the economy by encouraging more investment in the country and enhancing a competitive business environment and introducing more cost-effective approaches to government, especially in the areas of fiscal management and the delivery of social services.

Freedom Front Plus/Vryheidsfront

While the Freedom Front is not considered a principal party in the grand scheme of South African politics, in light of the country’s past, it deserves brief mention. It is a right-wing Afrikaner political party that was created in 1993. It tends to receive the support of various farmers organizations. The goal appears to be that of an advocate for the retention of Afrikaner cultural traditions.

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Administration

The administration of South Africa’s governmental system is carried out at three levels: national, provincial, and municipal. The national administration is carried out by government departments and state institutions that are designed to support the democratic principles spelled out in the Constitution. Several of these commissions will be identified shortly, and some will be the focus of attention in this chapter. Of particular interest are the departments and commissions that are associated with the criminal justice system.

South Africa is divided into nine provinces: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, and Western Cape. Each province has a legislature that is composed of between 30 and 90 members who have been elected in a proportional election. Like the members of the National Assembly, members of a provincial legislature serve a five-year term. The chief executive of a province is the premier. The person is elected from among the members of the provincial legislature. The premier is also the leader of the 10-person delegation from the province that sits in the National Council of Provinces, the second house of the national parliament.

Local government is carried out at the municipal level. The rules associated with the election of members to a municipal council and the legislative and executive authority of the council tend to mirror that at the provincial level. Municipalities may elect to be a free- standing entity or choose to establish a system of governance that includes more than one municipality.

State Institutions Supporting Constitutional Democracy

The executive, legislature, and judiciary have a significant role to play in supporting the objectives spelled out in the preamble to the Constitution and to the values outlined in the founding provisions of the first section of the Constitution. Both the preamble and the founding principles are cited earlier. Of course, a good deal of attention will focus on the role of the judiciary later, which has a subsection devoted to it. The framers of the new South African constitution elected to establish several entities that are designed to address, somewhat on a daily basis, many of the issues cited in the founding principles. While they are independent organizations, they are ultimately accountable to the National Assembly. This is reflected in the annual reports that each issues to the Assembly. Moreover, it is the president, on the recommendation of the National Assembly, who appoints the Public Protector and members to the various commissions.

The Public Protector

According to section 182 of the Constitution, the Public Protector has the authority “(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; (b) to report on that conduct; and (c) to take appropriate action.” It should be noted, however, that the Protector may not investigate a decision handed down by a court. Among the types of issues brought to the attention of the office are allegations of ethics

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code violations by politicians, conflicts of interest, unprofessional and improper conduct of a civil servant, noncompliance with national legislation at the provincial level, complaints about pension benefits, complaints about pensioners’ housing subsidy, and undue delays in processing criminal appeals of behalf of prisoners. Finally, it should be noted that a person selected to serve as the Public Protector is limited to a single seven-year appointment.

South African Human Rights Commission

This commission is responsible for the promotion, protection, and monitoring of human rights in the country. It has the authority to investigate and to report on human rights matters, to seek resolutions of cases in which human rights have been violated, and to carry out research and education related to its mandate. Section 184 of the Constitution requires various departments and agencies of government to provide the commission with a report that outlines the steps taken to achieve the rights espoused in the Bill of Rights that deal with housing, health care, food, water, social security, education, and the environment. Commissioners can serve on either a full-time or part-time basis.

Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities

This commission is responsible for the promotion of cultural diversity, which includes respecting the rich cultural, religious, and linguistic communities of the country. In the event cases of discrimination on such matters are brought to their attention, they turn the matter over to the Human Rights Commission, which has the authority to investigate such matters. The Commission is comprised of at least 11 but not more than 17 commissioners.

Commission for Gender Equality

Discrimination based on gender has been a significant issue in many countries since its emergence as a recognized problem in the 1960s and 1970s. What makes it particularly troubling in the South African context is that a good deal of the inequality or discrimina - tion (as that term is used in the twenty-first-century context) has its origins in the ancient patriarchal native cultures. The commission is tasked to protect gender equality and to advance the same. It has the authority to monitor and investigate issues associated with gender inequality. It also conducts research, educates, lobbies, and reports on matters associated with gender equality. There are approximately 10 members on the commission.

Electoral Commission

This commission is responsible for managing elections at the national, provincial, and muni - cipal levels and to ensure that they are conducted in a free and fair manner. This includes declaring the results of elections. This commission is composed of five commissioners.

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Independent Communications Authority

This organization is responsible for ensuring that all citizens have access to a range of communication services. They license broadcasters, signal distributors, providers of telecommunication services, and postal services. They also handle complaints from various subscribers. The authority is administered and managed by a council that includes a chair and eight councilors and a chief executive officer.

Concerns

The ANC has accomplished a number of things since it became the majority party in the new South African government. Of particular note is that from 1994 to 2007, they had 2.6 million homes built. The number of homes with electricity has doubled to 8.8 million and more than 87 percent have access to clean running water (Russell, 2010). These are important accomplishments that address some of the most basic needs of the poor that were ignored by the apartheid regime. Nevertheless, there are a number of concerns, several of which were high on the ANC’s agenda when they earned the right to administer the government. Brief mention is made of four of them here, as they impact society in general and the criminal justice system in particular.

Education

The 26,000 public schools have had a good deal of money invested in them since 1994; unfortunately, they remain substandard. There are a host of factors that contribute to this dilemma. For example, the government acknowledges that there has been a significant level of incompetence at managing the resources provided to schools. There is a high level of absenteeism among the staff. Approximately 58 percent of the teachers under the age of 40 have died from AIDS. Roughly 33 percent of the students fail their twelfth-grade final exams, and only 40 percent finish grade 12. It is also estimated that 300,000 primary school students are HIV-positive from birth and will have health problems that will adversely impact their ability to learn (see Marais in Daniel, Naidoo, Pillay, and Southall, 2010; Russell, 2010).

Unemployment

While there are good jobs available in South Africa, there is a shortage of qualified people to fill them. The government claims that the unemployment rate is roughly 24 percent, but many people claim that it is much higher at between 30 and 40 percent. Moreover, 73 percent of people under the age of 35 are unemployed. It is further estimated that as many as 50 percent of young people may never hold a job in their lifetime, because they lack any skills needed in the workplace. Originally, this problem was a result of the poor educational system provided for blacks during the apartheid era and the frequent closing of schools in the townships during the 1970s and 1980s when students were protesting the actions of

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the apartheid regime. The other part of the problem was mentioned earlier, that is, the substandard quality of the present educational system (Russell, 2010).

Unfortunately, the substandard educational system has continued. The Department of Basic Education reported that in 2013, 60 percent of young people left school with no qualification beyond grade 9. Of the students in grades 10 to 12, 9 percent had repeated a grade at least three times. The Annual National Assessment for 2013 indicated that 49 percent of grade 5 students performed satisfactorily in language skills, but only 33 percent did so in math, while in grade 9, the performance was 33 percent in language skills and 14 percent in math.

South African newspapers are frequently calling for a radical change not only in the educational system for children but also in teacher education. As alluded to earlier, education is associated with securing employment. Presently, the unemployment rate for people under 25 years of age is 51.5 percent, with males at 47.1 percent and females at 56.9 percent. Only Greece and Spain have a higher level of youth unemployment.

AIDS

When the ANC assumed responsibility for administering the government, they made a pledge to the people that they would take seriously every person’s right to health care. Admittedly, the healthcare system was confronted with many challenges, because of the neglect and poor quality of service provided to the majority of South Africans during the apartheid era. It would take time to correct several deficiencies. Nevertheless, South Africa has been confronted with an AIDS epidemic for three decades. Within the government, officials were in a state of bizarre denial at the level of the problem and the efficacy of antiretrovirals. They essentially refused to accept for a considerable period of time the science on AIDS. While they have reversed their earlier position on AIDS, the damage has already been done. The country will suffer the effects for years to come. To illustrate, it is estimated that 5.6 million people in South Africa are living with AIDS, which is more than any other country. Some have estimated that approximately 310,000 died of AIDS in 2009.

The significant percent of students and teachers with HIV/AIDS was noted earlier. This has had a serious impact, especially on South African’s black professional class. This also includes all aspects of the criminal justice system: police, judicial services, and correctional employees. This epidemic has impacted in particular the age groups ranging from the late teens to the late forties. The estimate is that 17.8 percent of that age group is affected. Moreover, the failure to address this problem in an appropriate manner has led to a further increase in the number of orphans and the pressing need for more caregivers (see Marais in Daniel, Naidoo, Pillay, and Southall, 2010; Mbali in Daniel, Habib, and Southall, 2003; Quinlan and Willan in Daniel, Southall, and Lutchman, 2005; Russell, 2010).

Corruption

The apartheid state was a form of corruption on a grand scale in that it significantly hindered the role of accountability of parliament, courts, and the media. In the present context, corruption is associated with clearly illegal acts, such as fraud and bribery, to unethical

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actions, such as patronage, mismanagement, and abuse of power. The perceptions of South Africa are that there is a lot of corruption. Public servants most associated with corruption are the police, particularly traffic officers. The South African media have noted that politicians and government officials, especially at the local and provincial level, are using their positions for personal gain.

The ANC has been accused of not doing enough to police its own, that the quality of local and provincial officials is too low, and that there is an attitude of entitlement now that they are in power. The arms procurement scandal, which involved then deputy president Jacob Zuma, along with other allegations of corruption, have continued to follow Zuma after he assumed the presidency. Since assuming the presidency, a cloud of charges of corruption continues to follow Zuma. Such criticisms have led to claims of racism and that the critics want the ANC to fail. It has been reported that the government has attempted to introduce an anti-corruption strategy. Unfortunately, financial resources are not forthcoming to implement the strategy. Once again, the government is attempting to address a host of issues, many of which are the result of the apartheid regime, but with limited resources. In a 2003 United Nations survey of 1,000 businesses, 62 percent indicated that bribery was becoming a problem and that 7 percent stated that they had paid a bribe. Many businesses (64 percent) stated that fraud and corruption were hindering business.

In the most recent corruption perceptions index of 2013, by Transparency International, South Africa was ranked 72 out of 175 countries with a score of 42. (The highest scores of 90 to 100 indicate very clean versus the lowest scores of 00 to 09 indicating highly corrupt.) Of the countries covered in this book, the rankings and scores were as follows: United Kingdom 14 (76), Japan 18 (74), France 22 (71), Turkey 53 (50), Saudi Arabia 63 (46), China 80 (40), Russia 127 (28), and Iran 144 (25). The United States was ranked 19 (73) (see Sole in Daniel, Southall and Lutchman, 2005; Transparency International, 2013). Thus, only China, Russia, and Iran had a lower score than South Africa.

POLICE During the apartheid era there was not only a significant increase in the size and powers granted to the police, but there was also a need to recruit more black police to work in the various townships that had developed on the borders of towns and cities and that had been expanding both in number and size of population. The police were the principal agency of government responsible for enforcing the various draconian laws that were enacted during apartheid. Harsh police tactics were inevitably employed, which led to protests and riots. This, in turn, sparked more police raids, in particular early morning raids that were designed to check on the status of the inhabitants’ pass documents. Pass law violators could be and were arrested and jailed for not having their passbook up to date. It will be recalled that the Group Areas Act (1950) led to the forced removal of people from their homes, and it was the heavily armed police that were called upon to carry out the removals. Of all the agencies of the apartheid criminal justice system, the police were undoubtedly hated the most, because they were the most visible organization and were frequently encountered by a majority of black South Africans. Without this type of police force it is unlikely that the apartheid regime could have continued in power for as long as it did.

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Chapter 5

Russia

CONCEPTS TO KNOW

• Marxism–Leninism • Mikhail Gorbachev • Democratization • Constitution of the Russian Federation • President of the Russian Federation • Federal Security Service (FSB) • Propiska • Constitutional Court of the Russian Federation • Judicial Department • Procuracy • Defense Counsel • Justices of the Peace • Jury • Material Definition of Crime • Measures of Restraint • Plea Bargaining • Ministry of Internal Affairs (MVD) • Commission on Juvenile Affairs

INTRODUCTION

THE LONGEST-RUNNING social science experiment of the twentieth century officially ended on December 25, 1991, with the resignation of Mikhail Gorbachev as president of the Soviet Union. From the Bolshevik Revolution of 1917 until Gorbachev’s resignation, the rulers of the Soviet Union had attempted to create a communist society that would be the envy of the world. Support for this goal was continual for more than 70 years, but the sense of

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purpose and direction began to unravel during the late 1980s. The principal cause for this shift in opinion was Gorbachev’s alternative rationale for achieving socialism. Although his ideas were a radical departure from some of the basic tenets of Leninism, Gorbachev generally favored implementing them incrementally. Nevertheless, disaffection with these ideas became quite pronounced among devoted communists, which led to the attempted coup of August 1991. This was followed by Gorbachev’s resignation and the formal dissolution of the country by year’s end.

The Soviet Union had been composed of 15 republics: Armenia, Azerbaijan, Byelorussia, Estonia, Georgia, Kazakhstan, Kirghizistan, Latvia, Lithuania, Moldavia, Russia, Tadzhikistan, Turkmenistan, Ukraine, and Uzbekistan. Russia was not only the largest republic in terms of territory and population, but it also dominated the policies of the Soviet Union—so much so that the words Russian and Soviet were often used interchangeably when referring to the foreign and domestic policies of the Soviet Union. Today, Russia is the largest country in the world, almost twice the size of the United States. It encompasses more than 6.5 million square miles that stretch from Eastern Europe through the northern half of Asia. The population of about 139 million has become more urban over the past 50 years. In fact, it has reached about 80 percent of the population— almost an exact reversal of the urban and rural ratio at the time of the 1917 Revolution (see Figure 5.1).

Russia is a federation consisting of six categories of administrative units. These include 21 republics, nine territories, 46 provinces, two federal cities, one autonomous republic, and four autonomous regions. Among these administrative units, the republics have the greatest claim to self-government. Although Russians comprise more than 80 percent of the country’s population, there are some 126 nationalities with distinct racial, linguistic, and religious preferences. The nature of the federation’s administrative units, coupled with the number of ethnic groups, has led some commentators to suggest that Russia might eventually follow the path of the Soviet Union and be divided into still smaller units.

Before the Bolshevik Revolution, Russia was characterized as a large, authoritarian, backward, rural nation. After the Revolution, especially as a result of Joseph Stalin’s reign, it emerged as a large, authoritarian, backward, industrialized nation. Believed to be one of the richest countries in the world, it has extensive holdings in oil, natural gas, and coal. While Russia is considered one of the few countries with the capability of becoming self- sufficient, this is unlikely to happen in the foreseeable future. Today, the principal industries are steel, machinery, machine tools, vehicles, and chemicals. Under the Soviet regime, centralized planning was emphasized, and individual creativity was essentially discouraged. The one exception to this rule related to the vast defense industry. In more recent years, attempts have been made to shift this industry to civilian use. Shortfalls continue to occur among the agricultural yields, and the extensive natural resources remain largely untapped because of deficient applications of technology. Thus, although the country is a highly industrialized society by world standards, it is not an advanced society. In addition, the industrial sector is becoming antiquated and less efficient. A large part of these circum - stances are the result of unstable economic conditions.

To state that a country is industrialized as well as backward is rather paradoxical. Yet, Russia is just that—a paradox. Western scholars, journalists, politicians, and travelers have

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described it in this way for more than a century. For example, despite the fact the Soviet leaders heralded the establishment of socialist democracy, there were numerous indications that it was a totalitarian regime. The people often perceived themselves as strong, powerful, and morally superior, but they displayed an unqualified submissiveness to their leaders as well as a sense of inferiority to the accomplishments of the West. Their communist ideology called for the elimination of the exploitation of humankind; however, their political and economic institutions fostered a rampant form of corruption that infiltrated all aspects of life. The Soviets claimed to establish a land of the proletariat, yet they were extremely conscious of rank. Their historically significant revolution was designed to overthrow the tsar’s chains of oppression, but these were merely supplanted by the chains of the Communist Party. The party devoted a good deal of time and energy to publicizing its ideological principles to a people who were largely nonpolitical. The Soviet Constitution proclaimed free speech, free press, and free assembly, but institutional censorship and self- censorship were quite common, and the Committee for State Security watched over all assemblies. Finally, the Soviets spoke of the benefits of collective agriculture, but an estimated one-third of the agricultural output was grown on private plots.

Despite these paradoxes, there has been a pronounced, deep love of country on the part of the Russian people. This quality is different from that of other countries, because the Russian love of country has been frequently tested, often to extraordinary limits. Throughout its history, Russia has been vulnerable to attacks from Asiatic tribes to the east and from Europe to the west. The last time this occurred was during World War II, when 20 million citizens died in defense of the motherland.

Protection from Russia’s enemies—real or imagined—was a central feature of the country’s foreign and domestic policies. It took two forms. One form of protection was security from the world beyond the borders. This was achieved by building a strong military establishment that was second only to China’s in size, by creating satellite zones that served as a buffer to the motherland, and by supporting or encouraging dissension in other parts of the world in the hope that these events would keep the enemy preoccupied.

The size of the military has been reduced because the leadership realized that it contributed to the economic woes of the country. Events in Eastern Europe led to a dismantling of the buffer zone that was established following World War II. While some of the popular commentary in the West viewed this as weakening Russia, this was not necessarily a correct assessment. Eastern Europe had been an economic drain for several years, as well as a source of insecurity from dissenting parties in the buffer zone countries. Today, some Russians view the former republics of the Soviet Union (characterized as the “near abroad”) as a new buffer zone.

The second protectionist approach focused on assuring security from within the country. With some 126 nationalities inhabiting Russia, there had been a great fear that internal dissent might arise. The Communist Party’s own history was a witness to that political reality. Since its inception, the party’s all-powerful Committee for State Security served to deter internal dissent. Since the creation of the Russian Federation, these fears have been realized as ethnic unrest continues to erupt. A good deal of attention has been devoted to events in Chechnya in particular.

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Originally, the Soviet government was able to implement this security policy because the people were essentially patriotic and nonpolitical. Throughout their history, the Russian people came to respect power and authority. Whereas most citizens in democratic countries show deference to their law, Russian citizens display a similar regard for authority. Because such awe of power and authority generally leads to conformity, freedom—at least as United States citizens understand it—had no place in Soviet society. American concepts of law and freedom are based on historical events. The Renaissance, Reformation, and Enlighten - ment were instrumental in the evolutionary development of such ideas; however, these periods of intellectual change were essentially absent from Russian history.

The most pronounced theme running throughout Russian history has been the presence of totalitarian authority. Such authority has been all the Russians have known, be it a Mongol-Tatar khan, a Russian tsar, or a Communist Party leader. This factor assists in explaining some of the significant implications for the Russian political process and its criminal justice system. It also suggests that hope for dramatic changes in the region should be tempered by a recognition of that history.

The events in Russia since 1991 have focused almost exclusively on the leadership’s attempt to transform the old order to a new order. Central to this change has been a shift from a socialist economy to a free market economy. In this context, students of comparative criminal justice should be aware of three important observations.

Since the initial focus of change has been directed at the economic system, most of the political energy has been directed at achieving that goal. This has taken two forms: (1) changes directed specifically at the economy, and (2) reforms of the political system that control the economic infrastructure. As a result, only limited incremental changes had been introduced in the criminal justice system.

The changes that have occurred in the justice system were introduced in the form of legislation or policy. This does not mean, however, that these intended changes have actually occurred in practice. The difficulty of implementing new policy is not unique to Russia. All organizations (or perhaps, more specifically, the people employed by them), irrespective of political ideology, have some degree of difficulty accepting most kinds of change in the status quo.

What compounds the problems for the reformers in Russia are the profound changes that are central to political and social institutions. The magnitude of the changes has implications for a person’s ability to cope. To illustrate, two scenarios are presented here. One form of coping is directed at employees of the justice system. The vast majority of people working in the Russian criminal justice system have been the same people who were employed in the Soviet system. They—more than most Russian citizens—were apt to support the communist cause, because the nature of their jobs was to enforce law and maintain order. While many may feel betrayed by their leaders and disillusioned with the current situation, in all likelihood, many also would be more reluctant to embrace the new order. As such, they might thwart change by looking nostalgically at the old order and either seeking a return to it or at least some new version for maintaining order.

The other kind of coping problem is directed more at the ordinary citizen, but could also apply to some employees of the justice system. At issue is the psychological impact that the dissolution of the Soviet Union has had on its citizens in general. According to

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Richard Pipes, the collapse of the Soviet empire “has dealt a heavy blow. . . to the self- esteem of Russians” (Isham, 1995). This climate of self-doubt has manifested itself in several ways. For example, there is a reluctance in some cases to accept the new legal order and in other cases to reject the ethical basis for the new market economy. The inability to develop a consensus on legal and ethical issues of this kind fosters instability. In addition, the absence of a sense of internal unity has led to an unstable balance of authority within the administration of government. It has been pointed out by more than one commentator that this kind of situation only enhances a nihilistic attitude toward the state and its agents.

A second observation of which students of comparative criminal justice should be aware is that whenever a country undertakes a massive transformation in its view of the social order, disorder inevitably occurs. The movement from a socialist economy to a free market system is an example of a massive transformation in the social order. Hence, a good deal of disorder can be expected. Every two steps taken forward toward a free market economy will undoubtedly be followed by one, and sometimes two, steps backward. Change of this magnitude seldom, if ever, occurs in a straight, constant, upward curve. This point has been illustrated well by the attempted coup in August 1991 by hard-line communists, the armed uprising of October 1993, the election of ultra-nationalist legislators in December 1993, the ongoing battle to keep the republic of Chechnya within the Russian Federation, the Communist Party’s comeback in the parliamentary elections of 1995, and since 2000, president then prime minister and now president again Vladimir Putin’s authoritarian efforts to consolidate more power under his leadership.

A final observation is that the leaders of the movement to transform the Soviet system were all products of the old order. They will rely upon agents of the criminal justice system for the retention of a degree of order. Despite the fact that the leadership is attempting to move the country to a new social order, they may condone or encourage the use of law enforcement and order maintenance methods that have proved effective in the past. This fact also suggests why significant change in the justice system will not be forthcoming during the early stages of the transformation to a new social order. Thus, while people in the West might be encouraged by reforms adopted in Russia, they should realize that lasting change will only occur gradually over an extended period of time. These observations are noted here because upon the dissolution of the Soviet Union many within and outside of Russia thought that the country might embrace the rule of law. Although there was some movement in that direction, it has yet to be achieved and is unlikely for the foreseeable future.

GOVERNMENT Social systems and their governments are supported—and in some cases held together— by a belief or value system that offers direction and a sense of purpose. For example, the United States holds that all people are created equal and are worthy of equal protection and due process of law. Russia is presently in the process of changing its social system and hence is altering its belief and value system. Obviously, this process will take a good deal of time. In this context, time is not estimated by months or a limited number of years but

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rather is measured in terms of at least a generation or more. As has been mentioned, the central feature of this transformation from the old order to a new order has to do with adopting a different set of economic principles that are embraced by society. This process has a profound impact on the political and economic infrastructure of the country. In the Russian context, this transformation has enhanced the status of law because the application of legal principles is vital to the successful implementation of the changes. The role that law plays in this process is not limited to economics, however. Its enhanced stature is utilized in other political and social contexts, including criminal justice.

Because Russia has been in a state of flux and is uncertain about its immediate future and long-term prospects, it is important to consider the events that have been unfolding in the country since 1991 in the context of the ideology that gave the Soviet Union its direction and purpose throughout much of this century. Unlike the beliefs that hold other social systems together, the Soviet value system was much more ambitious. Referred to as Marxism–Leninism, it was both a normative and descriptive theory that purported to explain social interaction and to prescribe the means of changing it. When one takes into consideration the historical and cultural characteristics of the country and its people, it should come as no surprise that the Marxist–Leninist philosophy became the official ideology of the government. What follows is a brief summary of the evolution of the communist ideology in the Soviet Union. It is designed to provide the reader with an outline of the ideology of the old order so that one can better understand the significance of the decision to abandon it for a new order.

Communism

Marx

The central contribution of Karl Marx (1818–1883) to the development of the communist ideology was his belief in the role that economic factors played in political and social change. The production and distribution of wealth and the kinds of property relationships that developed had a considerable influence on the social consciousness of humankind. Historically, this was the case under slavery, serfdom, and capitalism, and it would also be true under socialism and communism. This economic interpretation of history was central to understanding society.

For Marx, the principal factor that causes dynamism in the historical dialectic is the class struggle. This struggle is carried on by two conflicting classes: those who own the land and the means of production and those who work in order to subsist. In a capitalist society, class antagonism exists between the proletariat (or urban workers) and the bourgeoisie (or capitalist producers). Marx viewed capitalism as an economic system that exploited the masses. He felt that there would come a time when the proletariat would rise up in revolution and eliminate the bourgeoisie. Socialism would then be established to replace the capitalist system. With this change, the class struggle would cease to exist. Since the bourgeoisie used the state for the sole purpose of controlling other classes, it would become obsolete and wither away. All of this would be but a prelude to the creation of the ideal communist society in which prosperity would abound for all. Orthodox Marxists

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were of the opinion that the proletariat revolution would occur in a highly industrialized society. They felt that in a country such as England, the revolution could even occur peacefully.

Lenin

At the beginning of the twentieth century, Russia was not industrialized. It was an agrarian society having a small proletariat incapable of overthrowing the bourgeoisie. In light of these facts, it was the theoretical contributions of Vladimir Ilich Lenin (1870–1924) that made the revolution possible in Russia. Many of his ideas remained the guiding force in Russia until the emergence of Mikhail Gorbachev. Among Lenin’s principal ideas was a belief that the socialist revolution could occur in Russia if the proletariat united with the numerically superior peasantry. From his perspective, it was imperative that the proletariat be led by an elite, militant, and highly disciplined organization. This group would become the Communist Party, whose single purpose was to unite the masses to lead the revolution. Because of the need for unity of purpose, there could be no room for divisions within the party. Lenin referred to this principle as democratic centralism: all authority would rest with the party executive.

Lenin saw the revolution and the deterioration of the state occurring in two phases. The first stage was labeled socialism. During this phase, the state would continue to exist; it would appear on the surface to characterize a bourgeois society, but there would be a significant difference. Under socialism, suppression would be in the hands of the majority rather than the minority. The masses would systematically suppress the oppressors of the old regime, and the means of economic production would be socialized. Although equality would not exist in the workplace, at least exploitation would be eliminated. In addition, in order to assure the success of the revolutionary movement, aspects of bourgeois law would have to be retained because of the need for control. The second stage would see the withering away of the state and law, as well as the emergence of equality for all workers. At that point in time, the ideal communist society would be established.

Stalin

In his critique of Lenin’s democratic centralism, Leon Trotsky was fearful that a dictator might emerge from the powerful executive of the Communist Party envisioned by Lenin as necessary for a successful revolution. Until his death, Joseph Stalin (1879–1953) proved Trotsky acutely prophetic. Some have argued that Stalin was necessary in order for socialism to have succeeded in Russia. When Lenin died in 1924, the revolutionary movement was in disarray, and an agrarian economic base existed in the country. Stalin changed that by converting the country into a powerful and increasingly modern industrial - ized state. He accomplished this feat through summary executions, mass imprisonment of suspected enemies, and an extensive system of forced labor camps. Just as credit is given to Lenin for creating a viable revolutionary formula for Marxism in Russia, Stalin is acknow - ledged for transforming the country into a powerful giant among states. His methods, however, have been criticized from within the Soviet Union since his death.

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Gorbachev

Not since Lenin had a Soviet leader made such a significant theoretical contribution to communist ideology as Mikhail Gorbachev (1931–). His theory consisted of an alternative rationale for achieving socialism that radically departed from some of the basic tenets of Leninism and offered a method designed to realize that objective. There were essentially two factors that motivated Gorbachev to depart from standard interpretations of the communist ideology. First, he was highly critical of the manner in which Lenin’s democratic centralism was adopted, that is, the extent to which power was allocated exclusively with the Communist Party. Second, Gorbachev wanted to dispel the myth that the Soviet Union had entered into a mature form of socialism. Lenin had argued that the socialist revolution would occur in two phases. The first stage was referred to as socialism. Although the state would continue to exist, it would be transformed through the elimination of the exploitation of the masses. The second stage would be marked by the withering away of the state and law, and the emergence of an ideal communist society in which equality would exist for all. During Leonid Brezhnev’s regime, this myth implied that, because they had entered a mature form of socialism, the Soviets were on the road to achieving the ideal communist society. Gorbachev felt that nothing could be further from the truth.

Gorbachev’s theoretical contribution was an attempt to resuscitate the communist ideology toward the establishment of a truly socialist society. His prescription for what was ailing the Soviet Union was based on three concepts: glasnost (openness), perestroika (restructuring), and democratization. Each of these ideas was interrelated. For example, democratization could not be achieved without glasnost, and perestroika could not be realized without democratization. Gorbachev acknowledged that what had caused the inertia in the Soviet economy was a bloated bureaucracy. This phenomenon was not limited to the Communist Party (although Gorbachev largely placed blame on it); it was also evident in the national, republic, and local levels of government as well as in the state-run economic system. Various bureaucracies had looked after their own interests for years and had largely ignored the interests of the people. According to Gorbachev, the people must be free in order for socialism to succeed, and this could be achieved only if the interests of all were represented in society’s decision-making processes. The policy of glasnost (openness) was the starting point, for it was the means by which the inefficiencies in public life were criticized. Gorbachev’s views on what was wrong with Soviet society served as a practical illustration of glasnost. Actually changing the status quo would be achieved through perestroika (restructuring), but perestroika could not be realized without democratization. When Gorbachev spoke of democratization, he was referring to democratic socialism. For Gorbachev, democracy must be socialistic, and socialism must be democratic. Here he remained true to his ideological roots, while also transforming that ideology into a viable theory for the present.

In order to achieve democratization, several changes were necessary in the Soviet system. These changes corresponded to three major issues. First, a democratic society is governed by the rule of law. Law assures rights and freedoms for individuals and controls the potential abuse of power and authority of the leadership. Thus, constitutional reform was necessary to establish a socialist style of checks and balances. There was also a need

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for an independent judiciary that was not tied to the dictates of the Communist Party. Reforms that addressed some of these issues were introduced and adopted during Gorbachev’s tenure in power. Second, democratization should lead to both equality of social justice and equality of opportunity. The latter was designed to encourage and assure individual initiative and enterprise—something that had been largely absent in the Soviet Union and was sorely needed for its economy. Gorbachev faced the difficulty of squaring individual interests with the more traditional collective interests of socialism. Third, democratization would inevitably lead to a plurality of ideas. In the political context, this would lead to the abandonment of a single-party system and the establishment of a multiple-party system. While Gorbachev was in power, legislation had been adopted to enable this to happen, but it was only realized after the dissolution of the Soviet Union. According to Gorbachev, democratization would strengthen, rather than weaken, the Communist Party.

This democratic style of governance would lead to the realization of the strategy of perestroika, because democratic styles of management would be introduced in all aspects of life. This restructuring would enable the introduction of efficient methods of planning and development in the economic sectors of society. Further, it followed that perestroika would eventually lead to the resolution of the country’s economic woes. In light of the political developments in the Soviet Union, a case could be made that the policy of glasnost and the strategy of perestroika succeeded beyond the wildest dreams of its proponents, in particular those of Gorbachev. While some people in Russia remain supportive of com - munism, it is not suggested here that Russia might return to this system, irrespective of the fact that the efforts to establish a new order have been painful for people and disruptive for society at large. What is possible is that Russia might grow weary of its efforts to chart a course toward democracy and abandon such a course in favor of an ideology that in the end is as repressive as that found under the communist system.

Democratization

When discussing domestic political events in the Russian Federation, the Western press has often used the terms “democracy” and “democratization” interchangeably. This is an inaccurate use of those terms and a flawed portrayal of reality. In this context, democracy should be used to explain a fact. It literally means “government by the people,” and it has been used to make distinctions among different types of governments, such as government by a few (aristocracy) or government by one (monarchy or dictator). Democratization, on the other hand, is a process in which proponents of democracy are aspiring to establish that form of government but as yet have not achieved that goal (Berman, 1992; Iakovlev, 1990; Juviler, 1990).

The central feature of democratization is a recognition of the importance of government by rule of law. Gorbachev recognized the significance of this, for he saw law as the vehicle for assuring rights and freedoms and for checking potential abuses of power and authority. From the time of Gorbachev to the leadership of the Russian Federation, Russia has been establishing the legal foundations for a democratic system of government. Legislation has been passed that is designed to assure basic political rights that are fundamental to the

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creation of a democratic state. These rights include freedom of expression, freedom of assembly, freedom of association, freedom of speech, and freedom of the press. Although these efforts are concrete illustrations that the proponents of democratization are having some success, the Russian Federation is still a considerable distance from reaching the ultimate goal of an established democracy. In addition (as mentioned in the previous section), the fact that legislation has been passed does not necessarily mean that it has been implemented in practice, enforced by Russian standards, or is being complied with in a manner deemed appropriate by the West.

From a Western perspective, one of the most important concepts associated with the rule of law is due process of rights and the concomitant notion of an independent judiciary. Although legal documents of the former Soviet Union spoke of rights for citizens, in practice, they did not mirror reality. Rights were vested in the state, not in people. As such, it will take time for the Russian Federation to pass a sufficient amount of legislation that addresses due process issues. It will require even more time to enable it to function in a manner that meets an objective Russian standard. Even when this occurs, it may not have reached an appropriate standard from a Western perspective. Moreover, a state that proclaims to be subject to its own laws must guarantee its citizens an independent judiciary. While efforts are under way to move in this direction, this has not been realized at this time in the Russian Federation.

Throughout Vladimir Putin’s first tenure as president from 2000 to 2008, there were growing concerns that Russia was returning to a highly centralized authoritarian state. Since that time this attitude continued when Dmitry Medvedev, Putin’s handpicked successor, assumed the presidency, and Putin became the prime minister. The constitution limited the person holding the office of president to two consecutive terms. Some argued that there was a need to impose order at the expense of liberty in order to salvage a degree of liberty, which most Russians had found alien to their personal experience. A good deal of criticism was directed at the government’s increased control of the media (Amnesty International Report, 2008). Protests by opposing political parties or other groups are frequently stopped by police, and such incidents are not reported in the media. It is alleged that some journalists who have been critical of the government were sent to psychiatric hospitals. This strategy can have an obvious chilling effect on the press in light of the use of such hospitals to curb dissent during the Soviet era. Moreover, it has been widely reported that as many as 16 journalists were killed from 2000 to early 2009. The assassination of these investigative journalists, along with some Russian human rights workers, have been referred to as political killings, for the victims were either reporting or expressing opposition to the abuse of law by the state (Amnesty International Report, 2012; Human Rights Watch World Reports, 2012, 2013, and 2014).

The extent to which corruption is widespread throughout most state institutions is another concern that threatens to undermine democratization. It is important to note that corruption did not emerge during Putin’s tenure as president. It was rampant during the Soviet era and continued to flourish in both the public and burgeoning private sectors following the establishment of the Russian Federation. It exists in the economic, judicial, political, and social life of Russians and is viewed as normal. To illustrate the degree of the problem, Transparency International issued a Corruption Perception Index for 2013.

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The Index provides for most countries a score of between 0 and 100, with 100 being the highest in the confidence range. The score is based on the views of country analysts and businesspersons. Russia received a score of 28. By way of comparison, the other countries that have a chapter devoted to them in this book received the following scores: United Kingdom, 76; France, 71; Japan, 74; Turkey, 50; Saudi Arabia, 46; South Africa, 42; China, 40; and Iran, 25. The United States received a score of 73 (Transparency International, 2013).

While the Russian public is not oblivious to the issue of corruption, because they are frequently confronted with it in their daily lives, they accept it as a normal pattern of behavior. The principal focus for most Russians is simply to improve their standard of living. In late 2008, the Russian Public Opinion Research Centre reported that 74 percent of the population considered the level of corruption to be high or very high. The Public Opinion Foundation’s research indicated that 56 percent of businesspeople and 29 percent of citizens had paid a bribe. These respondents indicated that they doubted the government’s ability to reduce corruption. They were referring to President Medvedev’s National Anti-corruption Plan that was scheduled to become law in 2009. This skeptical attitude of the citizenry was further justified when the Procurator General’s Office reported that bribery offenses continue to increase. During the last six months of 2007, 6,700 offenses were recorded, and the number of offenses increased to 8,000 during the first six months of 2008 (Transparency International, 2009).

A recent public opinion poll indicated that 30 percent of Russians consider corrup- tion inevitable in light of the political and economic system. Twenty-two percent of the participants noted the Russian national character as contributing to this dilemma. In addition, 18 percent argued that the government authorities need more control to address the problem (Levada Center, 2013). President Putin has acknowledged this ongoing problem and has argued for, among other things, the need to address the issue of corruption in law enforcement agencies and the courts.

Putin became president again in 2012, while Dmitry Medvedev assumed the post of prime minister. Numerous questions were raised about the legitimacy of the election. At the time, various groups, in particular the growing middle class, were opposed to Putin’s return to power. Since his return, the Crimean peninsula has been annexed, and a crisis of sovereignty in eastern Ukraine has sparked international concern. In reference to Crimea, 91 percent of Russian respondents supported the reintegration with Russia. Moreover, a 2013 survey found 46 percent of the Russian respondents supporting Putin’s agenda, while 36 percent were highly critical of it (Levada Center, 2013)

Constitution

The Constitution of the Russian Federation was adopted on December 12, 1993, the same day it was approved by the voters. The document consists of nine chapters and 137 articles. It explains how the state functions, what the rights of citizens are, and how the government is organized and administered. The document has been referred to as the “Yeltsin” Constitution because former President Boris Yeltsin was the force behind delineating its

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legal principles and assuring its subsequent approval. Chapter 1 consists of basic provisions for the establishment of the constitutional system for the country. For example, Article 1 states: “The Russian Federation/Russia is a democratic and federal state based on the rule of law, with a republican form of government.” Articles 10 and 11 clarify in general terms the organization of the central government by indicating that the three branches of government—executive, legislative, and judicial—are separate and independent from each other. Questions have been raised in recent years over the extent to which the leadership of Russia is truly committed to democratic ideals, as the words “oligarchy” and “authoritative regime” have crept into the discussion by scholars on Russia’s system of governance.

Although constitutions of the former Soviet Union spoke of citizens’ rights, in reality, rights were vested in the state and citizens were accorded a series of obligations. With this constitution, the roles are reversed. For example, Article 2 declares: “Human beings and their rights and liberties are the supreme values. The recognition, observance and protection of human and civil rights and liberties is the obligation of the state.” Article 7 states: “The Russian Federation is a social state whose policy is aimed at creating conditions that ensure a dignified life for human beings and their free development.” Other articles in this chapter recognize diversity of ideas and religious beliefs, guarantee freedom in economic endeavors, and acknowledge private forms of ownership.

While Chapter 1 acknowledged the importance of human rights, Chapter 2 provides a list of specific rights and liberties that were deemed significant enough to include in the constitution. These rights are divided into 47 categories. Articles 20 through 25 identify some of the rights that are of particular interest to students of criminal justice. They state:

Article 20. Everyone has the right to life. Pending its abolition, capital punishment may be established by federal law as an exceptional measure of punishment for especially grave crimes against human life, provided that the accused is given the right to have his case considered in a trial by jury.

Article 21. Human dignity is protected by the state. There can be no basis for its derogation. No one may be subjected to torture, violence or other treatment or punishment that is cruel or degrading to human dignity. No one may be subjected, without his or her voluntary agreement, to medical, scientific, or other experiments.

Article 22. Everyone has the right to freedom and personal inviolability. Arresting persons, taking them into custody and keeping them in custody are permitted only on the basis of a court decision. A person may not be subjected to detention for more than 48 hours before a court decision is rendered.

Article 23. Everyone has the right to inviolability of personal life, personal and family privacy, and the protection of his or her honor and good name. Everyone has the right to confidentiality of correspondence, telephone conversations, and postal, telegraph, and other communications. Restriction of this right is permitted only on the basis of a court decision.

Article 24. The gathering, storing, use, and dissemination of information about a person’s private life without his or her consent are not permitted. Bodies of state power

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and bodies of local self-government, as well as their officials, must provide everyone with an opportunity to become familiar with documents and materials directly affecting his or her rights and liberties, unless stipulated otherwise by law.

Article 25. Dwelling quarters are inviolable. No one has the right to enter dwelling quarters against the will of the residents, except in cases established by federal law or on the basis of a court decision.

These articles illustrate some of the constitutional concerns that have implications for both citizens and agents of the Russian criminal justice system. For the most part, many human rights issues identified in these articles have yet to be achieved to any significant extent and thus should be considered ideals. Although more will be said about this, it is important to identify briefly some of the concerns raised by both rights groups within Russia and various international organizations, such as ACAT-France, Amnesty International, the European Court of Human Rights, Human Rights Watch, and Transparency International. To illustrate, it is not uncommon for people to be subjected to torture and violence by police. The 48-hour rule on detention while in police custody is frequently waived. The right to confidentiality is breached by the authorities. Finally, criticism has been leveled at the cruel and degrading policies and conditions of many correctional institutions.

Other issues that deal with criminal justice in general and criminal procedure in particular are also addressed in this chapter of the constitution. They will be discussed in the section on law.

Chapter 3 is devoted to a wide range of issues that are significant for a federated system of governance. For example, distinctions are made regarding those issues that are solely the responsibility of the federation and those that are shared jointly between the federation and members of the federation. Of particular significance is Article 76, which illustrates the newfound importance placed on the rule of law. The article states, in part:

Federal laws may not be at variance with federal constitutional laws. Laws and other normative legal acts of the members of the Russian Federation

may not be at variance with federal laws. . . . If there is a contradiction between a federal law and another act issued in the Russian Federation, the federal law prevails.

The other chapters of the constitution deal with various branches or levels of government and are described next.

President

The president of the Russian Federation is elected to a six-year term by direct universal suffrage. He or she is limited to holding the position for two consecutive terms. The president is the head of state, which gives him or her the constitutional authority to represent the Russian Federation within the country and in the international community. The president is responsible for the formulation of domestic and foreign policy and serves as the head of the Security Council of the Federation and the Supreme Commander in Chief of the Russian Federated Armed Forces.

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The constitution authorizes the president to appoint the chair of the government (or administration) of the Russian Federation, with the consent of the State Duma; to preside over meetings of the government; and to make decisions on dismissing the government. The president is responsible for presenting judicial candidates to the Constitutional Court and to the Supreme Court and a candidate for the position of Procurator General of the Federation. These candidates must then receive the approval of the Council of the Federation. The president also has the authority to issue directives and decrees that are binding throughout the federation, as long as they comply with constitutional and federation law.

As was alluded to earlier, the Constitution of the Russian Federation has been criticized within Russia because it extends significant powers to the president. Further illustrating the level of authority granted the office is Article 80, which states, in part, that:

The President of the Russian Federation is the guarantor of the Constitution of the Russian Federation and of human and civil rights and liberties. In accordance with procedures established by the Constitution of the Russian Federation, he takes measures to protect the sovereignty of the Russian Federation, its independence and its state integrity, and he ensures the coordinated functioning and interaction of all bodies of state power.

Clearly, significant powers are vested in the office of president, but this is not unusual by Russian standards. The political history of Russia has been dominated by strong, powerful leaders for centuries. In the Soviet context, Mikhail Gorbachev amended the Constitution of the USSR (Union of Soviet Socialist Republics) in 1990 to enhance the role of president. Until that time, the office had been largely ceremonial. Gorbachev’s purpose was to use the office to support his efforts at perestroika. In fact, amending the constitution to strengthen the presidency was a practical example of perestroika. Moreover, because the Russian people do not have a point of reference in their history with participatory forms of governance, Boris Yeltsin may have actually enhanced the likelihood that the country will remain on a path toward a democratic system by vesting significant authority in the office of the president. Only history will tell if the presidential authority is used to avert chaos or to cause it. As alluded to earlier, Vladimir Putin’s efforts to centralize more power under his presidency has raised concerns among those proponents of democratization and rule of law.

Prime Minister

Article 110 of the constitution states: “Executive power in the Russian Federation is exercised by the government of the Russian Federation.” The government includes a prime minister (chair of the government) and other federal ministers. The prime minister is appointed by the president with the consent of the State Duma. The principal responsibilities of the prime minister are to establish and organize the work of the government in coordination with other ministers. The government can be dissolved under the following circumstances: if it relinquishes its authority when a new president is elected; if it tenders its resignation, which can be accepted or rejected by the president; if the president decides

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to dismiss the government; or if the State Duma indicates its displeasure with the government through a no-confidence vote.

Federal Assembly

The Federal Assembly is a bicameral parliament that consists of the Council of the Federation and the State Duma. The members of each chamber elect a chair and a vice- chair who preside over their respective chambers. The State Duma is composed of 450 deputies who are elected to a term of five years and serve as full-time legislators. The administrative responsibilities of the Duma include consenting to the president’s selection of a prime minister, determining issues of confidence in the government, and bringing charges against the president with the intention of removing him or her from office.

Once legislation is adopted by the Duma, it is sent to the Council of the Federation for that chamber’s consideration. The Council is composed of 166 members. Each of the 83 administrative units that form the Russian Federation has two representatives to this chamber. One representative is selected from the ranks of the legislative branch of the administrative unit, while the other representative is a member of the executive branch of the local unit. It has been suggested by critics that the selection of representatives to the Council are largely controlled by the executive branch of the Russian Federation (Shiraev, 2010).

All legislation that deals with financial issues, international treaties, the country’s borders, or matters of war and peace must be entertained by the Council. Approval from the Council for all other legislation can occur either by a simple majority vote or by default if the Council fails to entertain the matter within 14 days of receiving it. The constitution assigns several other duties to the Council. These include confirming presidential decrees on such sensitive issues as the imposition of martial law or the introduction of a state of emergency, determining the use of federation troops outside the boundaries of the Russian Federation, appointing judges to the Constitutional Court and the Supreme Court, and removing the president from office.

Political Parties

At the beginning of this section, it was suggested that the development of the communist ideology gave the Soviet Union direction and purpose throughout much of the twentieth century. The Communist Party played a significant role in the politics of the Soviet Union. Unlike political parties in many Western countries, the Communist Party of the Soviet Union (CPSU) possessed a number of unique characteristics. Most significant was the fact that it was the real source of power and authority within the country. Another was the special purpose that it bestowed on itself. Whereas most political parties exist in the hope of winning elections, the CPSU’s original purpose was to foment revolution and to achieve power through force rather than the ballot box. Subsequent to the formation of the Soviet Union, the party’s primary goals were to maintain power and to determine and implement its policy for the future of the socialist state. This was fairly easy to achieve because the CPSU was either the dominant party or, for many years, the only political party in the Soviet Union.

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Membership in the party was kept small intentionally. In a country of more than 285 million inhabitants, party membership was approximately 16.5 million. This coincided with Lenin’s belief that only a small number of committed, disciplined revolutionaries were capable of directing the country through the various stages of revolution, socialism, and communism.

In considering the state of political parties in Russia today, we return to the context of the country’s efforts at democratization. Basic political rights are fundamental to the creation of a democratic state. Freedom of expression, assembly, and association establish a climate of opinion that in turn encourages a diversity of ideas. Support for this position has been included in the Constitution of the Russian Federation. Article 13 states: “Ideological diversity is recognized in the Russian Federation. No state or mandatory ideology may be established. Political diversity and a multiparty system are recognized in the Russian Federation.”

Following the dissolution of the Soviet Union, a number of political parties emerged in Russia, which suggested that the people were embracing the concept of political diversity. At the time, it could have been argued that there were actually too many parties. To illustrate, of the 43 parties that competed for seats in the parliamentary election of December 1995, 33 of them each received less than 3 percent of the vote. Recently, the number of political parties that have attracted the attention of voters in a significant way has diminished considerably.

United Russia is the political party that has supported the administrations of Putin and Medvedev. In the parliamentary elections to the Duma in December 2012, it secured 238 seats in the 450-seat Duma. The Communist Party is the only group that could be considered an opposition party in parliament. It espouses a socialist agenda that emphasizes moderate reform, including more public-sector spending and less privatization. It holds 92 seats in the Duma. The Liberal Democratic Party and the A Just Russia (sometimes referred to as Fair Russia) party are the only other parties of note. They secured, respectively, 56 and 64 seats in the Duma. In March 2008, Dmitry Medvedev received 71.5 percent of the vote, while his opponent from the Communist Party garnered 17.9 percent. In 2012, Putin garnered 63.6 percent of the vote, followed by the Communist Party candidate with 17.2 percent. The other party candidates for the presidency were in single digits. Today, com - mentators on Russia’s political system consider it devoid of any serious party competition.

Administration

The administration of the government of the Russian Federation is carried out by a combination of ministries, committees, and other federal agencies. Some of the ministries and federal agencies are directly subordinate to the president because of constitutional or legislative provisions. These include the Ministries of Defense, Internal Affairs, and Foreign Affairs. The other federal agencies that report directly to the president are Chief Security Guard Administration, Federal Security Service, Foreign Intelligence Service, Government Liaison and Information, Television and Radio Service, and Archives Service. Oversight of the other federal government units would fall to the prime minister. This would include Ministries of Agriculture and Food, Economics, Education, Fuel and Power, Justice, and Transportation. In addition, there is a host of other federal committees and departments.

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As is the case in any large country, local governments serve a useful purpose. They usually provide many of the basic services to the citizenry, including schools, hospitals, recreational facilities, and distribution centers for goods, as well as other social services. The Constitution of the Russian Federation addresses this issue to some extent. For example, Article 131 states: “Local self-government is exercised in urban and rural communities and other geographical areas with regard for historical and other local traditions. The popu - lation independently determines the structure of the bodies of local self-government.” In addition, Article 132 indicates: “Bodies of local self-government independently manage municipal property; draw up, confirm and fulfill the local budget; establish local taxes and fees; safeguard public order; and alone resolve other questions of local significance.” In a country whose history has known only authoritarian rule and whose political perspective had been dominated by a single view of its social destiny (a revolutionary one at that), the Russian Federation has recognized the importance of self-governance by including it in its strategy of democratization.

POLICE A government that espouses principles associated with democracy is expected to adhere to the rule of law. Under such a system of government, people are vested with legal rights, and the state through its agents is obliged to protect the people in the exercise of those rights. Usually, the police are the initial government agents called upon to assure adherence to these democratic principles.

The basic principles associated with the governance of the Soviet Union were the reverse of those found in a democratic system. Government was not based on the rule of law but on the dictates of the Communist Party. The state was vested with all rights, while the people were subservient to the obligations of the state. Under this system, police considered themselves above the law, and people generally conformed to this arrangement because they tended to defer to authority.

During the Soviet era, three kinds of police systems were established: state security, militia, and ancillary forces. To a large extent, the government of the Russian Federation has had a difficult time reconciling or adapting these police systems to the democratization movement. In particular, basic issues of organization and policy have been in a state of flux. What follows is a description of the organization and administration of the three kinds of police systems established during the period of the Soviet Union, and how each system has attempted to adapt since the establishment of the Russian Federation (see Figure 5.2).

Organization and Administration of State Security

The history of the Soviet police began almost immediately after the October Revolution of 1917, when the principal law enforcement organizations were established. The method of organization goes a long way toward explaining the administrative history of these forces. In December 1917, the Council of People’s Commissars created the Extraordinary Com - mission for Combating Counter-Revolution and Sabotage (known by the Russian acronym Cheka). It was the new government’s first state security force and, as the name suggests,

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INTRODUCTION

CHINA is an ancient country that has one of the oldest civilizations on earth. Its written history is almost 4,000 years old, and throughout much of its existence, its cultural traditions have had a profound impact on the entire East Asian region. China occupies much of the mainland of East Asia and shares land borders with 14 countries (Afghanistan, Bhutan, India, Kazakhstan, Kyrgyzstan, Laos, Mongolia, Myanmar, Nepal, North Korea, Pakistan, Russia, Tajikistan, and Vietnam). With a geographical area of about 3.7 million square miles, China is slightly larger than the United States (see Figure 6.1). Among the countries of the world, only Russia and Canada are larger in area. Unlike the United States, where almost 20 percent of the land is utilized for agriculture, China cultivates around 10 percent of its land on a permanent basis.

Because of rugged and inhospitable geographical conditions, particularly in the western regions, large areas of China are uninhabited. As a result, approximately two-thirds of the population live along the east coast, which represents about one-fifth of the land. China has long held the distinction of having the world’s largest population at more than 1.3 billion. This figure is greater than the combined populations of Europe, Russia, and the United States. More than 91 percent of the people belong to the Han ethnic group. All of the other ethnic minorities represent less than 1 percent of the population, with the exception of the Zhuang minority at 1.3 percent of the total population.

Approximately 31 percent of the labor force is employed in agriculture and forestry, with industrial and service ventures employing 30 and 36 percent, respectively. Iron, steel, and textiles are among the more prominent industries. In 1978, Chinese leaders initiated a program to modernize agriculture, industry, science and technology, and national defense. Their goal was to achieve a fairly advanced industrialized country by the year 2000. This program was prompted, in part, by the fact that the standard of living had been in a considerable state of decline since the 1950s.

Throughout China’s more recent political history under communism, the state essen - tially owned the industrial enterprises and commercial ventures of the country. Because people were guaranteed life-long employment, concerns about workforce produc tivity had been negligible. As a result, most enterprises were largely overstaffed and highly inefficient. In this context, if China was serious about modernizing its economy, there was a need to make dramatic changes in attitudes about employment and to make considerable alterations of basic workplace values.

Through a series of reform initiatives, for example, the dismantling of the communal system in agricultural communities and promoting self-management in state-owned enterprises, China has been transformed from a centralized planned economy to one that has embraced market-oriented principles. The central feature of this transformation has been to encourage and enable individual initiatives in a host of economic ventures that has fostered an entrepreneurial spirit that is unique to the Chinese experience.

According to the China Labor Bulletin of June 25, 2013, there were 767 million people in the working population in 2012, with 371 million, or 48.4 percent, employed in urban areas. Employment opportunities in rural areas of the country continue to decline. Moreover,

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the number of people employed in the private sector and with foreign-owned businesses rose from 45.8 million in 2008 to 69.1 million in 2012.

China had been a peasant-based society throughout its history. One of the programs initiated by the Communists was to universalize primary education. Today, Chinese citizens must attend at least nine years of schooling. It is estimated that 91.6 percent of the population who are at least 15 years of age and older can read and write. The youths of China, ages 15 to 25, have a 99 percent literacy rate. In order for China to achieve the status of an advanced society, it must develop better training for its people. Although a considerable amount of work remains, a good deal of effort has already been directed at the science and technology, banking and insurance, education, transportation, and com - munication sectors. As a result, more than 60 percent of high school graduates attend a university, which is a significant increase from the 1980s, when only 20 percent continued their education. Moreover, in 1997, 1 million had enrolled in degree programs, and this figure increased to 5 million in 2011.

FUJIAN

GUANGDONGGUANGXI

HAINAN

ZHEJIANG

SHANGHAI

JIANGSU

ANHUI

JIANGXI HUNAN

HUBEI

HENAN

GUIZHOU

CHONGQING

SICHUAN

YUNNAN

QINGHAI

XINJIANG

XIZANG (TIBET)

NINGXIA

NEI MONGOL

(INNER MONGOLIA)

HEBEI

BEIJING TIANJIN

LIAONING

JILIN

HEILONGJIANG

GANSU SHAANXI

SHANXI SHANDONG

Taiwan

Beijing

Harbin

Changchun

Shenyang

Dalian

Yantai Jinan

NanjingHefei

Zhengzhou

Nanchang

Wuhan

Fuzhou

Taipei

Xiamen

Changsha

Hong Kong

Guangzhou

Macau

Zhanjiang

Haikou

Nanning

Guiyang

Chongqing

Chengdu

Xi'an

Lanzhou Xining

Golmud

Lhasa

Shiquanhe

Yumen

Karamay

Urumqi Yining

Kashi

Yinchuan

Hohhot

Taiyuan

Tianjin

Shijiazhuang

Kunming

Hangzhou

Shanghai

Oiqihar

Hailar

South China Sea

East China Sea

Yellow Sea

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FIGURE 6.1 | China Map courtesy of Bruce Jones Design Inc.

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In recent years, much of the attention directed at China has focused on three factors. First, China is the only remaining major country in the world that continues to embrace Communism. Some suggest that this has had adverse implications for the country’s internal political stability and economic growth. While it is prudent to take note of this warning, it is important to remember that China had one of the longest traditions of autocratic rule before the Communists took over. Second, China is attempting to introduce modern economic principles without granting the democratic political freedoms that are usually associated with modernization. This has led to a good deal of commentary on the long- term prospects of China’s modernization efforts. Third, China has opted throughout its history to turn inward for extended periods of time and not associate with much of the rest of the world. From 1949 until 1978, China essentially adopted an isolationist policy toward the West. Since 1978, it has reversed that tendency. At that time, the country acknowledged the need to acquire information and technology from the West in order to undertake the task of modernization. As a result, China’s significance on the world stage in general—and its prominence in the East Asian region in particular—has grown considerably.

GOVERNMENT On October 10, 1911, the Qing dynasty was overthrown. With this, the 4,000-year-old tradition of dynastic rule in China formally came to an end. Throughout much of the dynastic period, feudalism determined the methods of social and economic interaction. As a result, China had not been exposed to many of the political, social, or economic ideas that are generally considered modern. Through foreign assaults and occupation, external ideas were sometimes introduced or imposed on the country, especially during the nineteenth century, but the results often had adverse consequences.

From 1912 to 1949, the Chinese people were subjected to violent turmoil. Long- standing tensions with Japan erupted on more than one occasion even before the start of World War II. There was also a good deal of internal dissension as China attempted to establish a new political identity. The era of warlordism engulfed the country from 1916 to 1927, as independent armies attempted to gain control of large regions of the country. The most important internal conflict, however, was waged by the Kuomintang (or Nationalist Party) and the Chinese Communist Party. The Kuomintang was a political faction that espoused the republican views and democratic ideals of Sun Yat-sen, who founded this faction in 1905 as the Alliance Society and who became the provisional president of the Republic of China in 1912. The Chinese Communist Party was formally established in 1921. This occurred two years after Vladimir Ilich Lenin founded the Comintern to coordinate efforts at expanding communist movements throughout the world.

Following the Japanese defeat in World War II, the Kuomintang and Communists renewed their rivalry for political control of China. By late 1949, the Communists had defeated the Nationalists. Those who remained loyal to the Kuomintang fled with its leader, Chiang Kai-shek, to Taiwan. On October 1, 1949, Mao Zedong, the leader of the Com - munists, established the People’s Republic of China. Thus, the Communists assumed control throughout the country and proceeded to create their new social order.

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Communist Ideology

Marxism

The central concept in Karl Marx’s (1818–1883) approach to the study of history and society was the role that economic factors played in political and social change. The manner in which wealth was produced and distributed and the establishment of various types of property relationships had a significant influence on humankind’s social consciousness. For Marx, this economic interpretation of history was true under slavery, serfdom, and capitalism, and it would also be true with socialism and communism.

The most significant feature of Marx’s view was the class struggle. This struggle is carried on by two distinct classes: those who own the land and the means of production and those who work in order to subsist. Marx viewed capitalism as an economic system that exploited the masses and encouraged class antagonism between the proletariat (urban workers) and the bourgeoisie (capitalist producers). He was of the opinion that in a highly industrialized society the proletariat at some point would revolt and eliminate the bourgeoisie. Socialism would then replace capitalism as the economic system of choice. Under these circumstances, the class struggle would be eliminated and the state would cease to exist, because it was simply a tool of the bourgeoisie used to control other social classes. Eventually, an ideal communist society would be created and all would prosper.

Leninism

Marxist ideology was developed further with the theoretical contributions of Vladimir Ilich Lenin (1870–1924), who made the revolution possible in Russia. At the time, Russia was not an industrialized country but an agrarian society. Lenin was convinced that the proletariat revolution could occur in a country such as Russia if the proletariat united with the numerically superior peasantry. Lenin was also of the opinion that the bourgeoisie could be overthrown only if the proletariat was led by an elite, militant, disciplined organization. This group would become the Communist Party. Because of the need for unity of purpose, there could be no room for divisions within the party. Lenin referred to this principle as democratic centralism, that is, all authority would rest with the party executive.

From Lenin’s perspective, the revolution would occur in two stages. The first was the socialist stage in which the state would continue to exist. On the surface, it would appear that the bourgeois society continued to exist, but, in fact, there would be a significant difference. Suppression would be in the hands of the majority rather than the minority; the means of economic production would be socialized; and exploitation in the workplace would be eliminated. During the second stage, the state would wither away and there would be no need for law. The ideal communist society would be established and equality would exist for all workers.

Mao Zedong Thought

From the initial efforts to create a Communist Party in China, Mao Zedong (1893–1976) was actively involved in organizing students to work among the peasants. Mao accepted

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Marx’s idea that society progresses from one stage to another and Lenin’s views on the feasibility of staging a revolution in a nonindustrialized country. Mao’s major contribution to the enhancement of communist ideology was his ability to adapt communist principles to the realities of the Chinese political environment. The most distinct and important feature of Mao’s thought was to base the revolution on the mass support of the peasants. As such, he offered a different strategic perspective from that espoused by traditional Marxism, which emphasized the importance of the urban industrial proletariat. He also established an army controlled by the Communist Party that had the support of the peasants and recruited peasants into its ranks.

A central component of Mao’s thought and a pragmatic feature of his strategic policy initiative was the importance placed on the mass mobilization of people as an essential ingredient to creating a socialist society. During his tenure in power, he implemented several programs that illustrate this objective. Two of his most famous initiatives were the Great Leap Forward and the Cultural Revolution.

The Great Leap Forward was introduced in 1958. It was based on the notion of mobilizing people into communes for purposes of social transformation and as a strategy designed to increase industrial and agricultural production. To illustrate, an agricultural commune might consist of approximately 5,000 households. Because private property no longer existed, individual income was based on the total production of the commune. The commune was responsible for all administrative and service needs of its members, such as nurseries, schools, and care for the elderly. The communal system was imposed on factories and other commercial enterprises as well. It was also employed as a method of managing large projects that were introduced to improve the country’s infrastructure. For example, many students and soldiers worked in communal settings to reclaim land and build dams.

The Great Leap Forward was an attempt to maximize agricultural and industrial production through mass mobilization. It enabled the Communists to eliminate any remnants of private property and to impose the notion of socialist ownership. The principal criticisms directed at this initiative involved the manner in which decisions were made in a communal setting. In agriculture and industry, planning often lacked logical procedures and rational processes. Goals that were far too ambitious and devoid of quality concerns were established to maximize production. In addition, skilled managers were replaced by Communist Party cadres who played crucial roles in communal decision making but lacked the necessary technical expertise. The results of the Great Leap Forward were that several failures occurred in industrial settings and serious famine plagued various regions of the country.

The Cultural Revolution occurred between 1966 and 1976. It was Mao’s radical attempt to reform the Communist Party. He called for the destruction of what he characterized as old thought, old culture, old customs, and old habits. Once again, Mao mobilized the masses, in particular young people, to join an effort to establish a socialist program that emphasized self-reliance.

The establishment of an independent socialist agenda was prompted by a worsening of relations between China and the Soviet Union, which had influenced China’s Communist Party since its inception in 1921. Mao also was dissatisfied with the Party’s efforts at

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achieving his agenda. He wanted his ideas to guide the Chinese people in all aspects of their lives. Moreover, he believed that revolution was necessary and that the class struggle was continuous. Support for the ongoing revolution and class struggle would enable society to move beyond socialism to communism.

Mao organized young people into Red Guard units that were instrumental in attacking the four “olds”—thought, culture, customs, and habits. This campaign, which reached its most intense and destructive phase from 1966 through 1968, affected all levels of society. Economic and social institutions were disrupted throughout the country, and the political system was weakened to a considerable degree. The chaotic conditions created by the Cultural Revolution enhanced significantly the responsibilities of the People’s Liberation Army. With the police and other components of the justice system under attack, the military assumed responsibility for maintaining law and order. As the Revolution continued, the breadth and depth of the military’s involvement in civilian and political issues increased considerably.

Members of the political leadership eventually recognized that the Revolution was an impediment to the socialist movement. They emerged from the disorder to counter the Red Guards and the Maoist radical agenda. Gradually, the central political leadership of the country was able to moderate the more radical wing of the Cultural Revolution. Mao’s death in 1976 was instrumental in bringing closure to the Cultural Revolution.

Deng’s Influence

At the time of Mao’s death, key members within the leadership of the Communist Party had begun to focus attention on modernization through economic development. In order to implement such an agenda, efforts would first have to be made to break with the Maoist past, while acknowledging Mao’s achievements. As a result, Mao was praised for his role in establishing the Chinese Communist Party and for his leadership in carrying out the Revolution in China. What was being abandoned by the leadership was Mao’s revolutionary visions and methods for developing a socialist society. His emphasis on the class struggle and anti-intellectualism, his method of economic development through the communal system, and his isolationist attitude toward the rest of the world were all being abandoned in order to implement a new vision for China and its role in the world.

The principal architect of the new vision was Deng Xiaoping (1904–1997). His goal was to modernize China in four key areas: agriculture, industry, national defense, and science and technology. These became known as the “Four Modernizations.” In order to achieve these goals, it was imperative to abandon the country’s isolationist policy and establish an open-door policy, especially with the West. Such a policy would enable China to acquire the necessary knowledge and technology in its pursuit of creating a modern economy or, as Deng often defined it, a “socialism with Chinese characteristics.”

Because of the chaos imposed upon the country by the Cultural Revolution and its immediate aftermath, a good deal of effort also had to be directed at strengthening government functions and procedures. Deng set out to rectify these deficiencies in a variety of ways. Four are singled out here for illustration. First, because of his long tenure both in and out of politics, Deng realized that whoever controlled the military also controlled the

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country. As a result, he proceeded to establish a strong military that was under the direction of the Communist Party. Second, Deng recognized the need to identify and groom new leaders for the future. He not only recruited a future generation of leaders but he also ended the long-standing practice of life-long tenure in party and government positions. This change in policy would enhance the likelihood that Deng’s efforts at modernization would continue after he was gone from the scene. Third, Deng acknowledged that too much authority and control was centralized at the top of the party and government and that this was stifling creative efforts at introducing change in society and the economy. In light of this, he granted more authority to local people’s governmental units. This was designed to assure that the new and future group of leaders could experiment with pragmatic approaches to socialist modernization. The most practical application of this change in policy occurred in 1979 when four cities in southern China were permitted to develop as special economic zones (SEZs). Finally, China’s legal code was weak and its judiciary was without authority or independent status. In order to demonstrate to the world that China was attempting to establish a society that acknowledged the importance of the rule of law, specific legal initiatives became an important priority on Deng’s reform agenda. Several administrative procedures and codes of law—among them a new criminal code—were introduced, and a new Constitution was ratified in 1982.

Deng’s ultimate goal was to raise the standard of living of the Chinese people, which had been declining since the 1950s, by modernizing the country. In that regard, capitalist methods were employed to achieve those economic ends. Deng reconciled this apparent contradiction in a socialist country and explained his pragmatic approach to economics by his now-famous maxim: “It doesn’t matter whether the cat is black or white, as long as it catches mice.”

A degree of freedom extended to various sectors in the country led to changes in society and the economy and facilitated the movement toward modernization. Extending that degree of freedom to politics, however, was never part of the agenda. Unlike Mao, who encouraged revolution to achieve his objectives, Deng emphasized order and stability and adherence to party discipline and its leadership. This, in part, explains the 1989 tragedy of the unrest in and around Tiananmen Square, in which a number of protestors from a variety of classes, hence not limited to students, were killed in a confrontation with the People’s Liberation Army in the streets around the Square.

While there tends to be agreement among scholars and commentators that the Tiananmen Square incident can only be understood in the context of the democratic reform movement that was occurring in the Soviet Union and developing in eastern and central Europe, it is important to acknowledge that the initial thrust of the protest was directed at issues associated with corruption. Unfortunately, the Tiananmen demonstrators clearly misread the Chinese leadership’s agenda for the country. In the aftermath of the tragedy, the leadership, including Deng Xiaoping, was willing to face international vilification to maintain political control (Wasserstrom, 2010).

The twin issues of control and social stability are themes that have been and will continue to be associated with the People’s Republic of China. They are especially significant in relation to the Chinese criminal justice system. In order to understand China and its justice

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system, it is imperative to grasp this relationship. First, it is important to remember that throughout much of the twentieth century, China suffered from a number of upheavals, briefly alluded to already, that led to a highly unstable society. Second, when the country embraced the communist ideology, they adopted, among other things, Lenin’s notion of democratic centralism. This is the perspective that all authority would rest with the leadership of the Communist Party. The principal goal of the leadership, especially since the death of Mao, has been to maintain social stability, and at times at all costs.

With the death of Mao, the leadership utilizes law and employs the various agents of the justice system—police, procurators, and judges—to carry out its mandate to ensure social stability. In the event various components of the justice system are found wanting in this task, the military is ready to assume responsibility for maintaining law and order: hence, Deng’s goal to place the military under the control of the Communist Party. Thus, control and social stability were considered essential as the country embarked on experimenting with economic reforms while attempting to adhere to its socialist principles. The economic reform agenda has inevitably brought a good deal of change and stress for many people that could lead to instability throughout the country. The purpose of this strategy has been and will continue to be to keep the Communist Party as the ultimate source of power in the country. The events at Tiananmen Square were simply a graphic illustration of that policy in practice.

By way of comparison, it is interesting to note that the Soviet Union and China—the two major communist countries in the world at the time—took two different approaches to reform. The Soviet Union, under the leadership of Mikhail Gorbachev, focused much of its attention on political reform. Moreover, the basis or motivation for the reform would come from the central administration with the principal architect being Gorbachev and his three concepts of glasnost (openness), perestroika (restructuring), and democratization. Glasnost meant that the inefficiencies of public life would be open for criticism; perestroika was a call for a reorganization of the Soviet system in order that it might become a more efficient form of socialism and enhance the well-being of the people; democratization was essential if perestroika was to be realized. Democratization referred to democratic socialism and was designed to embrace constitutional reform that included a socialist style of checks and balances and an independent judiciary. Democratization would also lead to a plurality of political ideas, which would inevitably lead to the abandonment of a single-party political system. Gorbachev’s dream for the Soviet Union ended with its demise.

As indicated earlier, the People’s Republic of China under the leadership of Deng Xiaoping focused most of its attention on economic reform. Whereas the idea for the Soviet reform effort came from the top of the political hierarchy and was implemented from the central administration, China’s idea for reform also came from the top of the political hierarchy, but it was initiated at the grassroots level, with many of its attempts flourishing beyond people’s expectations. Thus, Deng’s dream has been very successful. The fact that China did not address political reform simultaneously with economic reform has probably benefited its economic successes in the short run. If the Chinese leaders continue to avoid significant political reform, however, it could prove detrimental in the long run to a stable political, economic, and social system.

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Jiang’s Contribution

Deng Xiaoping anointed Jiang Zemin (1926–) as his successor. Jiang was elected general secretary of the Chinese Communist Party by the Communist Party Congress in 1989 and served until 2002. He was also elected president of the People’s Republic of China by the National People’s Congress in 1993 and served until 2003. While it is too early to evaluate Jiang’s lasting contribution to China in general and to communist ideology in particular, he argued that the Communist Party had a very important role to play in the transformation of Chinese society to a socialist market economy. In describing the role of the party, he coined the term “Three Represents,” which meant that the Chinese Communist Party represented society’s most productive economic forces, society’s most advanced culture, and the interests of all the people. Thus, the party was being defined as the organization that was at the center of the economic, cultural, and social changes that were designed to benefit all Chinese citizens. Clearly, the party was no longer the revolutionary party of Mao Zedong. It was no longer solely concerned about the proletariat, that is, the workers and peasants of Marx, Lenin, and Mao. It was the party of the broad masses of people irrespective of their social-economic status in the changing Chinese society.

By abandoning its association with Mao’s revolutionary zeal, Jiang adhered to and reinforced Deng Xiaoping’s view that in order to transform China’s economic system there had to be order and stability throughout the country. The party through its adherence to party discipline would lead this transformation. By doing so, it would no longer be viewed as a revolutionary party but rather as the ruling party. From the perspective of Deng, Jiang, and other leaders in the party, this new role for the party would assure its dominant role in China and prevent its demise or near demise as has been the case in other socialist countries that are in the process of transforming their economic system.

During Jiang’s tenure, he focused a good deal of his attention on three domestic issues that were initiated by Deng. First, he helped expand the developing socialist market economy by encouraging individual initiatives in various economic ventures that have fostered a new entrepreneurial spirit in China. He also began to scale back on the number of state-owned enterprises that had long been a drain on the economy. Second, he has reduced the size of the central government and given more responsibility to the provinces, regions, municipalities, and local administrative divisions. Finally, he has strengthened the legal system. Among the most important pieces of legislation passed are: the administrative litigation law, civil procedure law, a revised criminal procedure law, and a new criminal code. While the legal profession was almost nonexistent at the time of Mao’s death, it is now estimated that there are more than 240,000 lawyers in the country. This was made possible by the reopening of old law schools and the establishment of a number of new law schools and legal institutes.

Communist Party

Unlike most countries that have political parties competing with one another for the right to set the political agenda of the country, China has but one recognized political party: the Chinese Communist Party (CCP). This is in keeping with a socialist tradition initiated in

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the former Soviet Union. Lenin indicated that the success of the proletariat revolution hinged in part on the establishment of an elite, militant, disciplined organization that would lead the Revolution. That organization was the Communist Party. As indicated earlier, Mao Zedong followed that tradition by utilizing the CCP to establish the People’s Republic of China in 1949.

The principal requirements for membership in the CCP are accepting the party’s agenda and a willingness to work for its programs. Candidates for membership must be at least 18 years of age. Presently, there are over 85 million party members who come from all walks of life.

In order to understand and appreciate the political agenda of the CCP, it is instructive to turn to the Constitution of the Chinese Communist Party for some insight. In the section titled “General Program,” which is similar to a preamble, the party indicates that its ultimate goal is to create a communist social system and that it will be guided in this endeavor by adhering to Marxism-Leninism and Mao Zedong thought. By adhering to a Marxist interpretation of history, it states further that “the inevitable replacement of capitalism by socialism is an irreversible general trend in the history of social development.” Although an ideological victory is projected for the long term, the party acknowledges frankly that the country is only “in the initial stage of socialism. This is an impassable stage for economically and culturally backward China in the drive for socialist modernization, which may take up to a hundred years. Socialist construction in our country must proceed from its own conditions and follows the road of socialism with Chinese characteristics.”

Throughout the 1980s, when attempts to modernize China’s economy were introduced, there was a good deal of discussion about reforming the CCP, because it was recognized as contributing in a significant way to the creation and perpetuation of a highly centralized, bureaucratized, and rigid political system. A lively debate within the Party hierarchy followed in which it was suggested that the CCP should reduce its extensive involvement in the daily operations of government. In addition, the CCP was urged to function in a more democratic manner and be held accountable to other organizations within society. With the demise of communist regimes in eastern and central Europe and the impact that democratic reforms had on the former Soviet Union, the Chinese leadership concluded that political control should be enhanced rather than reduced. The argument was also put forth that centralized political authority was necessary in order to facilitate efforts at modernizing the economy.

Several scholars from the West have indicated that this issue will undoubtedly be revisited. The central government is finding it difficult to wield its authority over the entire country, thus raising questions about the viability of its power. Moreover, the legitimacy of the CCP as the sole political party within the country has come under greater criticism (Lubman, 1996).

Over the course of more than a decade, the political culture has changed significantly in terms of the relationship between the state and society. Economic growth has led to the rise of materialism and individualism among the citizenry who have been successful with the market economy. Both young and old feel alienated politically from either the ideology of the CCP or its policies (Ding, 2001). The efforts of Deng and Jiang to improve the economy have led to a considerable number of protests. While in 1993 the government

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acknowledged 8,700 demonstrations, that number rose to 87,000 in 2005. These protests were essentially local in nature and directed at local officials. The people were objecting to a wide range of issues, including employment concerns, health and safety issues, illegal land sales, local tax increases, and environmental concerns. For the most part, these demonstrations focused on single issues. As such, there has not emerged a regional, let alone a national, effort to challenge the CCP (Perry and Selden, 2000). It has been suggested that demonstrations of this kind were actually beneficial to the central government, as they alerted the government to problems at the grassroots level. This, in turn, can lead to positive reforms initiated by the central government and is a practical illustration of how the Communist Party represents the interest of the people (see Perry, in O’Brien, 2008). The government noted that there were a total of 871 mass incidents in 2013. A mass incident is defined as a protest involving at least 1,000 people. Among the reasons cited for these protests were: labor disputes, forced demolitions of property, land acquisitions, and pollution.

Probably the most significant issue that has fostered the sense of alienation and the growth in protests has been the level of corruption that appears widespread throughout society, in particular that related to official corruption. Scholars have noted that there was corruption before the post-Mao era and the rise of a market economy. Local party officials were involved in a number of illicit activities that included bribery, embezzlement, and extortion. Such abuses continue to this day and have proliferated with the market economy because of the growth in opportunities in both the public and private sectors.

From time to time, the government has initiated strike-hard campaigns against particular crime problems, and this has included corrupt government officials. Strike-hard campaigns are coordinated efforts by the government and agents of the criminal justice system to focus a good deal of attention and resources for a specific period of time on a particular crime problem. There have been three strike-hard campaigns. The first was initiated in 1983 and ended in 1987. It made a very broad sweep of all types of criminal activity. The second campaign from 1996 to 1997 and the third campaign from 2001 to 2003 were more focused. They were directed at such groups as drug dealers, pornographers, and organized crime. All campaigns are noted for the objective of quickly and severely punishing criminals. As a result, there has been an increase in the number of people sentenced to death (Liang, 2008). In the course of such campaigns against corruption, government officials have been arrested, tried, and convicted. Some have received fines or a prison sentence, and on occasion, they have been sentenced to death.

In spite of these efforts, corruption persists. Part of the problem is that local authorities have increased their power, and the central government has not been successful at establishing an effective oversight mechanism (Lu, 2000). The continued inability of the government to control or address the corruption problem in any meaningful way could be a central factor that prompts change in the single-party political system of China. As one scholar has pointed out, the democratic alternative offers at least two methods of addressing corruption: a media that can expose such problems and an electoral process that enables the removal of such officials (Sun, 2004).

Presently, the administration of the CCP more or less parallels that of government, for the party is organized at the local, county, provincial, and national levels. Brief mention is

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made of the party structure at the national level. In theory, the National Party Congress is at the top of the hierarchy. It is composed of almost 2,000 delegates who are elected by party members from local, county, and provincial units. The responsibilities of the National Party Congress include revising the constitution of the Party, discussing major policy issues, entertaining various reports from the party executive, and approving the selection of people for various committees.

Because the Congress only meets once every five years, the Central Committee is responsible for the functions of the Congress when it is not in session. The composition of the Central Committee is determined by the National Party Congress. Presently, the Committee consists of about 190 members; their term of office is five years. The Central Committee holds at least one plenary session a year. One of the principal responsibilities of this committee is to select people who will administer and manage the daily activities of the CCP.

The real power within the CCP resides in the Politburo, the Standing Committee of the Politburo, and the Secretariat. The members of these groups are selected by the Central Committee. The Secretariat is responsible for the daily management of the CCP. The Politburo and the Standing Committee of the Politburo focus their attention on national and international issues. The most important person within the CCP is the General Secretary, who administers the work of the Secretariat and convenes the meetings of the Politburo and the Standing Committee of the Politburo. These are the leaders of the Party that hold the ultimate reins of power in the country and seek to ensure that society is free from unrest and is socially stable.

With the election of Xi Jinping (1953–) as the general secretary of the Communist Party in 2012 and as president of the People’s Republic of China in 2013, a renewed anti- corruption campaign was initiated, for one of his goals is to address the problem of corruption, in particular within the Communist Party. Some high-ranking party officials were arrested and charged, which commentators have suggested is unique, for in the past, senior party officials were usually accorded an unofficial immunity from illegal activities. It should be noted that Transparency International ranked 177 countries on its perceived level of corruption in 2013. China was ranked 80, with a score of 40; its ranking had not changed from 2012. In the same year (2013), the other countries covered in this book that received a lower score were Russia (ranked 127, with a score of 28) and Iran (ranked 144, with a score of 25).

In addition to addressing the problem of corruption, Xi Jinping is also noted for prohibiting dissent. Over the course of the short period of time that he has assumed both leadership posts, he is considered by some to be the most powerful leader since Deng Xiaoping. Under his leadership, there has also been a good deal of discussion about a re- evaluation of how the country is governed. In these discussions, specific mention has been made at placing more emphasis on the importance of the constitution and in moving in the direction of embracing the rule of law.

While a more detailed presentation of these legal topics are considered below, one scholar has framed this development in the context of China’s economic transformation. Once a low-income country, China had an extremely basic, and at times no, legal system. Since its ascendance to a medium-income country, it has managed to establish a basic legal

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infrastructure, but it is not as efficient as high-income countries, which is what China aspires toward. At issue with regard to efficiency are concerns over the lack of fairness and justice that can begin to be addressed through efforts to improve the level of professionalism throughout the agencies of the justice system (Peerenboom, 2014). This appears to be one of Xi Jinping’s principal goals.

The Constitution

Since the fall of the Qing dynasty in 1911 and the end of imperial rule, political leaders in China have recognized the significant role that a written constitution can play in legitimizing the status and agenda of government. It is very important to point out, however, that the Chinese do not view their constitution in the same context as do people in the West. The basis for this difference is found in history. Traditionally, law was viewed in China as the command of a superior to assure uniformity and conformity. Although the superior could opt to adhere to the law for the sake of consistency, this was not required. Thus, the superior was not bound by the law, and if he deviated from it, his subordinate could not seek redress from a higher authority.

In light of this tradition, the Constitution of the People’s Republic of China should not be viewed as a list of rights designed to curtail the power of the central government. For example, Article 5 states, in part: “No organization or individual may enjoy the privilege of being above the Constitution and the law.” In spite of this statement, the Chinese leadership has not uniformly adhered to this principle, thus continuing the tradition from previous eras. Rights are listed in the document, but they are mentioned more as a statement of the government’s policy orientation.

The present Constitution of the People’s Republic of China was adopted in 1982 and has been amended since that time. It is the fourth constitution promulgated since the country was founded in 1949. Although the constitution displays a continuity with its earlier versions of 1954, 1975, and 1978, it also reflects a change in the government’s policy orientation since the days of Mao Zedong. For example, the preamble states, in part:

Our country will be in the primary stage of socialism for a long period of time. The basic task before the nation is the concentration of efforts on socialist modernization construction along the road of building socialism with Chinese characteristics. Under the leadership of the Communist Party of China and the guidance of Marxism- Leninism, Mao Zedong Thought and Deng Xiaoping Theory, the Chinese people of all ethnic groups will continue to adhere to the people’s democratic dictatorship and follow the socialist road, and to uphold reform and opening to the outside world, steadily improve socialist institutions, develop a socialist market economy, promote socialist democracy, improve the socialist legal system, and work hard and self-reliantly to modernize industry, agriculture, national defense, and science and technology step by step to build China into a strong and prosperous, culturally advanced, democratic socialist nation.

This is clearly an affirmation of the policies introduced by Deng Xiaoping, in particular, the attention directed at modernization through economic development.

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The constitution is divided into four chapters and consists of 138 articles. While the preamble makes reference to the leadership role of the Chinese Communist Party (CCP), Chapter 1 indicates the pervasive nature of that power. It states that China “is a socialist state under the people’s democratic dictatorship.” Article 2 proclaims that “all power in the PRC belongs to the people,” and Article 3 indicates that “the state organs of the PRC apply the principle of democratic centralism,” or all power rests with the leadership of the CCP.

Many of the articles in Chapter 1 (there are 32 in total) indicate the breadth and depth of the state’s involvement in the lives of the citizenry. Among the more prominent issues are the economy, education and training, health care, social services, and national defense. Article 6 is indicative of the socialist view, it states:

The basis of the socialist economic system of the PRC is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people.

The system of socialist public ownership supersedes the system of exploitation of man by man; it applies the principle of “from each according to his ability, to each according to his work.”

These are classic socialist phrases that one would expect of a country aspiring to establish a communist society. In 1999, Article 6 was amended with the addition of the following sentence.

In the primary stage of socialism, the state upholds the basic economic system with the dominance of the public ownership and the simultaneous development of an economy of diverse forms of ownership, and upholds the distribution system with the dominance of distribution according to work and the coexistence of diverse modes of distribution.

Obviously, this was an acknowledgment of the impact that market-oriented principles were having on the Chinese economy.

For students of criminal justice, Article 5 is worth mentioning in particular. It states:

The People’s Republic of China exercises the rule of law, building a socialist country governed according to law.

The state upholds the uniformity and dignity of the socialist legal system. No law or administrative or local rules and regulations shall contravene the

Constitution. All state organs, the armed forces, all political parties and public organizations,

and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be looked into.

No organization or individual may enjoy the privilege of being above the Constitution and the law.

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Throughout the twentieth century, a number of countries established a constitutional court to serve not only as a check on other branches of government but also to serve as a court of final resort when an individual or group claimed an exception, a privilege that suggested they were above the Constitution or law. China does not have such a court. As a result, the ultimate arbiter of such debates is the leadership of the Communist Party.

Moreover, as was suggested earlier, the Chinese leadership has not been uniformly bound by the law. In recent years, however, the enforcement of this provision has escalated to some extent. This has sparked discussion about the possible enhanced status of law throughout Chinese society. It should be noted that Article 5 was amended in 1999 with the addition of the first sentence and its mention of the rule of law. While adding the term “rule of law” suggests a possible change in the political dynamics of the country, this has either not reached fruition or is simply not the case. As was mentioned in the introductory chapter, a central feature of the rule of law is the idea that the exercise of state power must be regulated by law. In light of the Chinese Communist Party’s role in the governance of the country and the continued adherence to Lenin’s principle of democratic centralism, it is more accurate to describe China as a country ruled by law. In this context, law is a tool employed by the state usually to control or direct others without establishing a mechanism that can restrain the state from its exercise of such power (Peerenboom, 2002).

Constitutions of socialist countries usually include a section on rights and duties of citizens. In this regard, China is no exception, since Chapter 2 addresses issues such as freedom of speech, press, assembly, and religious belief; the right to rest, to social insur- ance, and to medical and health service; the duty to safeguard the country’s interests, perform military service, and pay taxes; and the right and duty to work and to receive education. Article 48 proclaims that women enjoy equal rights in all aspects of life. Finally, Article 53 indicates that citizens “must abide by the Constitution and the law, keep state secrets, protect public property, and observe labor discipline and public order and respect social ethics.”

It might be useful at this point to interject a few comments about the group known as Falun Gong. Various human rights groups, along with the Western media, have portrayed Falun Gong as a spiritual movement that has been deprived by the Chinese government of the constitutional protection of religious freedom. The Chinese government does not accept this characterization of the group; it views Falun Gong as a dangerous cult that is not accorded such constitutional protection. The central feature of Falun Gong is not a particular religious belief, as that term is usually employed, rather it is the practice of qigong. Qigong consists of a series of five exercises, of which the fifth involves sitting in the lotus position and meditating. The objective is to regulate qi, a nonphysical energy or life force that circulates throughout the body. Through channeling and harmonizing the qi, a person is attempting either to prevent or cure illness.

Theories of qi have long been a feature of traditional Chinese medicine. As such, most Chinese do not consider qigong to be associated with religion; rather, it is viewed as a health practice. The religious connection is made by some in part because Falun Gong means Dharma wheel practice. The Dharma wheel refers to the cycles of birth and death and is associated with the teachings of Buddha.

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Many of the followers of Falun Gong in China have reached middle age or beyond. It has been suggested that these people have been attracted to this practice because the ideological failure of communism has left a void in their lives. Some commentators have argued that the government’s attempts to eliminate the movement are not directed so much at its practice of qigong but because the government is alarmed at Falun Gong’s organizational abilities and considers it a possible threat to the Communist regime (Madsen, 2000; Ownby, 2008; Wasserestrom, 2010).

Some legal issues found in the Chinese Constitution are of particular interest to students of criminal justice, and they can be found in Chapter 2 of the document. The full text of the articles is cited here.

Article 37. The freedom of person of citizens of the PRC is inviolable. No citizen may be arrested except with the approval or by decision of a people’s

procuratorate or by decision of a people’s court, and arrests must be made by a public security organ.

Unlawful deprivation or restriction of citizens’ freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited.

Article 38. The personal dignity of citizens of the PRC is inviolable. Insult, libel, false charge, or frame-up directed against citizens by any means is prohibited.

Article 39. The home of citizens of the PRC is inviolable. Unlawful search of, or intrusion into, a citizen’s home is prohibited.

Article 40. The freedom and privacy of correspondence of citizens of the PRC are protected by law. No organization or individual may, on any ground, infringe upon the freedom and privacy of citizens’ correspondence except in cases where, to meet the needs of state security or of investigation into criminal offenses, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law.

As mentioned above, the recent interest by China’s leaders in emphasizing the importance of the Constitution and embracing the rule of law must be placed in the Chinese context. Initially, some commentators wondered if by focusing on the Constitution this might lead to people demanding the exercise of their rights that are mentioned in the document, such as, freedom of speech, press, assembly, and religious belief. The leaderships’ use of terms like “constitution” and “rule of law” were designed to enhance further the campaign against corruption. Thus, the purpose of this strategy is ultimately to utilize the law as a vehicle to strengthen the domestic security of the state and in the process reinforce the authority of the Chinese Communist Party. Finally, it is important to reiterate, especially as it relates to citizens’ rights to freedom from oppressive or intrusive actions of the government, that the Constitution of the People’s Republic of China should not be viewed as a list of rights designed to curtail the power of the central government. Rather, it is a statement of the government’s orientation toward public policy. References to other portions of the Constitution follow, as the structure of government is explained.

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The National People’s Congress

In theory, state power in China is unitary rather than separated. While the Chinese govern - ment is composed of a number of units, all owe their authority and receive guidance from a single source of state power: the people’s congress. The National People’s Congress is the ultimate source of state power; it is also the principal legislative body in China. Its members are referred to as deputies, and they are elected to five-year terms from either a province, autonomous region, or municipality. It is interesting to note that a portion of the deputies are elected from branches of the armed forces. There are almost 3,000 deputies in the National People’s Congress.

The Congress is accorded several duties. Their legislative authority includes amending and enforcing the Constitution and enacting and amending statutes. The deputies elect the president and vice president of the People’s Republic of China, the chair of the Central Military Commission, the president of the Supreme Court, and the procurator general. They confirm the choice of premier, who is nominated by the president of the People’s Republic of China, as well as other ministers of state who are nominated by the premier. The Congress also approves the budget and nationwide plans for economic and social development. Finally, they have the authority to remove from office the president and vice president of the People’s Republic of China, the premier and other ministers, the chair of the Central Military Commission, the president of the Supreme Court, and the procurator general.

According to the Constitution, the Congress must meet at least once a year and may be called into extraordinary sessions at other times. Because the Congress meets for such a limited time, it wields little power. Its primary purpose is to endorse the legislation and policy initiatives of the central administration.

The Standing Committee

From among its members the National People’s Congress elects deputies to serve on the Standing Committee. Presently, there are about 175 people, which include many of the leading government officials and influential members of the Chinese Communist Party. The Standing Committee is the legislative body that functions throughout the year; it also sets the agenda and presides over the National People’s Congress when it is in session. The Standing Committee retains its authority until a new congress is elected.

In light of the fact that the Standing Committee is a full-time legislative body, it has been given an extensive list of responsibilities. It interprets the Constitution and other statutes and enforces the Constitution. It also can enact and amend statutes when the National People’s Congress is not in session, but this authority is limited. The Committee supervises the State Council, the Central Military Commission, the Supreme People’s Court, and the Supreme People’s Procuratorate. The Standing Committee can annul various rules, regulations, decisions, and orders at both the national and provincial levels. It also appoints and can remove senior members of the judiciary and procuratorate. When the National People’s Congress is not in session, the Standing Committee can approve the appointment of ministers to the State Council and members to the Central Military Commission. Finally, if the National People’s Congress is not in session, the Standing Committee can decide to ratify or abrogate treaties, to enforce martial law, and to declare war.

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President of the People’s Republic of China

Throughout the history of socialist states that aspired to adopt the principles of Marxism–Leninism, the Communist Party and the state have been interrelated with the dominant position accorded the party. To illustrate, the role of the president of the People’s Republic of China is limited to that of head of state. Based upon decisions made by others, specifically the National People’s Congress and its Standing Committee, the president promulgates statutes, appoints and removes key government officials, declares martial law, and proclaims a state of war.

In order for a person to be eligible to serve in this office, he or she must be a citizen and have reached the age of 45. The president serves a five-year term, which corresponds to the term of the National People’s Congress. A person can be elected to the office for no more than two consecutive terms.

The State Council

According to the constitution, the State Council is the principal unit of state power; it is the executive body for state administration. The premier is ultimately responsible for the State Council, which includes several vice premiers, state councilors, and ministers. Because the Council includes so many government units, the premier is assisted by vice premiers and state councilors in the coordination of the Council’s work. The ministers are specifically responsible for either a government ministry or commission. Once again, the term of office for members of the State Council corresponds with that of the National People’s Congress. In addition, the premier, vice premiers, and state councilors are limited to serving in these capacities for no more than two consecutive terms.

For people who have lived only in a capitalist society in which government shares with the private sector the authority and responsibility to create a viable social system, it can be difficult to comprehend the totality of government authority under a socialist state that aspires to create a communist society. A listing of the various ministries, commissions, and organizations that have been part of the State Council should assist the reader in appreciating the breadth and depth to which the Chinese government is the principal administrator and regulator of people’s lives. The ministries have included agriculture, chemical indus- try, civil affairs, coal industry, communications, construction, culture, electronic industry, finance, foreign affairs, foreign trade and economic cooperation, forestry, geology and mineral resources, internal trade, justice, labor, machinery industry, metallurgical industry, national defense, personnel, posts and telecommunications, power industry, public health, public security, radio, film and television, railways, state security, supervision, water resources, auditor general, and the People’s Bank of China. The commissions consist of science, technology, and industry for national defense; state economics and trade; state education; state family planning; state nationalities affairs; state physical culture and sports; state planning; state restructuring of the economic system; and state science and technology. Other organizations that fall directly under the authority of the State Council are civil aviation administration of China, counselors’ office, general administration of customs, government offices administration bureau, national tourism administration, state

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administration for industry and commerce, state administration of taxation, state environ - mental protection bureau, state land administration, state legislative affairs bureau, state press and publications administration, state religious affairs bureau, and state statistical bureau.

In 1999, the government announced plans to streamline the bureaucracy. The objective was to consolidate groups of ministries and commissions that had similar functions or categories of responsibility into single ministries. The purpose was to make the government bureaucracy smaller but more efficient. This effort was also designed to facilitate the development of the market economy that the government was committed to establishing. The consolidation appears completed; the State Council consists of 28 ministries and commissions. The ministries include: agriculture, civil affairs, commerce, construction, culture, education, finance, foreign affairs, health, information industry, justice, labor and social security, land and resources, national defense, personnel, public security, railways, science and technology, state security, supervision, transportation, and water resources, along with the National Audit Office and the People’s Bank of China. The commissions consist of: the national development and reform commission, science, technology and industry for national defense, ethnic affairs, and family planning.

Administration

When one considers the size of China in terms of both its geography and population, it is essential that the administration of government be carried out at multiple levels within the political hierarchy. As a result, the administrative divisions below the central government include 23 provinces (Taiwan is considered a province), five autonomous regions, and four municipalities (Beijing, Chongqing, Shanghai, and Tianjin) under the central government. There are also more local units referred to as: prefectures, counties, cities, and districts. At the county level and above, there are people’s congresses and standing committees. It should be pointed out that deputies to people’s congresses at the county level are elected directly by the people. Presently, the government is considering expanding direct elections at other levels in the government. The people’s congresses are supposed to make government more responsive to the needs of the local people, while the standing committees are expected to facilitate the policies and programs of the central government at the local level. In addition, the day-to-day administration at the local level is handled by governors, mayors, and heads of counties.

The role of local administration has been an important issue in domestic politics for almost 30 years. The post-Mao leaders realized that the centralized state planning process often inhibited economic growth. As such, some of the planning process has devolved to regional, provincial, and local administrative units in order to enhance the opportunities for the new market-oriented ventures.

Staffing government administration at all levels is also being reformed. The cadre system, which was based on family and personal relationships, is being replaced by a civil service system familiar to the West. Competitive examinations and a regularized system of rules and norms determine the selection process. The selection of a more competent civil service has led to the introduction of a more competitive wage scale. It is hoped that

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this will help reduce the degree of corruption among government officials throughout the country, which has been an issue of significant concern for some time.

While a number of issues mentioned in this section are useful in helping to understand China’s approach to criminal justice, none is more important than how law has been viewed in the establishment and development of the People’s Republic of China. People from the West take for granted that a country’s legal system profoundly influences the criminal justice system, for it is law that is at the heart of the justice process. In the case of China, however, the context is significantly different. Law and the various components of the criminal justice system have been viewed in a strikingly different fashion.

It is important to remember that when the People’s Republic of China was established in 1949 the leaders of the Communist Party abolished the laws that had been established by the Kuomintang Party during the period of the Republic of China (1912–1949). The Communists intended to create a new government that would be based on a socialist legal system. While some law was passed during the early years of the new government, most notably the 1954 Constitution of the People’s Republic of China, a good deal of legislation languished in draft form (for example, criminal law and criminal procedural law). The activities of the Cultural Revolution (1966–1976) halted all efforts to enact legislation and even attacked those components of the justice system that were responsible for maintaining law and order.

The attitude toward law changed markedly following the death of Mao Zedong and the emergence of Deng Xiaoping as leader. Since the late 1970s, law has been viewed as a vehicle that could enhance and stabilize the country’s efforts at creating a socialist democracy. With the enactment of a criminal law and a criminal procedural law in 1979, the People’s Republic of China established the first criminal justice legal standard in its 30-year history.

Finally, in studying the Chinese justice system, it is important to remember that China has essentially two kinds of justice systems. One is the formal system, which is the creation of the government and will be the principal focus of attention in this chapter. The other is the informal system, which is essentially part of the cultural tradition of the country that dates back to ancient times. It is reflected in communities taking an active role in assuring that social order is maintained locally and in the preference of citizens to utilize mediation rather than allow the courts to resolve disputes. As China has become a more market-oriented economy and embraced modernization in a variety of ways, aspects of the informal system are at risk of declining in significance and may eventually be eliminated altogether.

POLICE As was suggested earlier, the considerable interest in China over the last two decades of the twentieth century was prompted by its emergence from a period of prolonged, self- imposed isolation from the rest of the world and the establishment of an open-door policy, in particular toward the West. This change in attitude was initiated by the government’s desire to modernize the country through economic development. Over the course of the initial phase of this economic transformation, the country witnessed a significant increase

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• Council of Guardians • Basij • Mustafa Kemal Ataturk • Supreme Council of Judges and Public Prosecutors • Constitutional Court

INTRODUCTION

IN THE INTRODUCTION to this text it was mentioned that some countries view the purpose and function of law in a different context from that which emerged in the West. For our purposes, Islamic law will illustrate this fact. It is important to point out that Islam is primarily a religion, a belief system that espouses a specific moral code. Islam means submitting to God’s will. From its inception, the most important group associated with Islam was the umma, the community of believers, and the ultimate goal of Islam was to establish a theocratic society. In such a context, the state is viewed as a vehicle to enhance and foster the revealed religion throughout the community of believers.

Islam is often referred to as one of the three Abrahamic faiths; the other two are Judaism and Christianity. What these three religions have in common is monotheism, the belief in one God. Today, Islam is the second largest religion in the world with more than 1.3 billion followers; Christianity is the largest with more than 2.1 billion adherents, of which 1.1 billion are Roman Catholic.

The Quran

It should be noted that it was not the intent of the Prophet Muhammad (570?–632) to establish a new religion; rather, his objective was to reform the religion of one God. The Quran (trans. 2004) clearly states:

We sent Jesus, son of Mary, in their footsteps, to confirm the Torah that had been sent before him: We gave him the Gospel with guidance, light, and conformation of the Torah already revealed—a guide and lesson for those who take heed of God. So let the followers of the Gospel judge according to what God has sent down in it. Those who do not judge according to what God has revealed are lawbreakers.

We sent to you [Muhammad] the Scriptures with the truth, confirming the Scriptures that came before it, and with final authority over them: so judge between them according to what God has sent down (5:46–48).

Thus, Muslims believe that Muhammad was the last of the great prophets. Those preceding him were Abraham, Moses, and Jesus.

Before proceeding further, it should be noted that when citing the Quran, the first number following the quote refers to the chapter, and the number or numbers following the colon indicate the specific verse(s). Because there is not one standard method of transliteration of Arabic to English, names and terms often have several different spellings.

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I have attempted to use a simplified form that is free of many diacritical marks. Any quotations, however, are retained in the original form.

As the aforementioned passage indicates, according to the Quran, Muhammad received messages from God through the angel Gabriel. These messages represented God’s final revelations to humankind, with the previous noteworthy revelations coming to Moses and Jesus. As a result, Muslims believe that Islam supersedes Judaism and Christianity, for it is the culmination of God’s message to humankind.

Muhammad received the revelations over a 23-year period, which represented two distinct phases of the Prophet’s life in Mecca and Medina. Initially, Muhammad had tried to introduce the revelations to the people of Mecca, but they were unwilling to believe in the principal feature of his message: that there was one God. As such, he left Mecca, the place of his birth, for Medina, where he would establish the first Islamic government and where he also died in 632.

While the largest number of revelations was received during the initial 12 and one- half years in Mecca, it was during Muhammad’s time in Medina that the legal rules and various regulations pertaining to everyday life were revealed. According to the Quran, “We sent it in this way to strengthen your heart [Prophet]; We gave it to you in gradual revelation” (25:32). In light of this approach, the Prophet and his Companions were able to memorize the Quran. The Quran also states: “[Prophet], do not rush your tongue in an attempt to hasten [your memorization of] the Revelation: We shall make sure of its safe collection and recitation. When We have recited it, repeat the recitation and We shall make it clear” (75:16–18). Because the Arab population was largely illiterate at the time, they found this gradual method of revelation beneficial. During the Prophet Muhammad’s life, parts of the Quran were written. It was not until after his death, however, that a single authorized version of the entire text became available.

Thus, the Quran is Islamic scripture; it is the primary source of these revelations or the Word of God. The Quran consists of 114 chapters or surats (surah, singular) and 6,342 verses or ayas (ayah, singular). Each chapter has a title, with the longest of the chapters appearing first and the remainder getting progressively shorter in the text. It has been pointed out that the “contents of the Qur’an are not classified subject-wise. The ayat [signs of God] on various topics appear in unexpected places, and no particular order can be ascertained in the sequence of its text” (Kamali, 1989).

Of the 6,342 verses in the Quran, scholars offer differing figures on how many verses deal with legal issues. It ranges from 350 to 500, and many of these are concerned with religious duties, such as prayer and fasting. With regard to the legal verses, it has been suggested that “most of which were revealed in response to problems that were actually encountered. Some were revealed with the aim of repealing objectionable customs such as infanticide, usury, gambling and unlimited polygamy. Others laid down penalties with which to enforce the reforms that the Qur’an had introduced. But on the whole, the Qur’an confirmed and upheld the existing customs and institutions of Arab society and only introduced changes that were deemed necessary” (Kamali, 1989). It was further estimated that approximately 30 verses dealt with crimes and corresponding sanctions, while another 30 pertained to matters of justice, equality, and rights and obligations of people.

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In the introduction to his translation of the Quran, which is used in this chapter to cite Quranic verses, M.A.S. Abdel Haleem pointed out:

The Qur’an was the starting point for all the Islamic sciences: Arabic grammar was developed to serve the Qur’an, the study of Arabic phonetics was pursued in order to determine the exact pronunciation of Qur’anic words, the science of Arabic rhetoric was developed in order to describe the features of the inimitable style of the Qur’an, the art of Arabic calligraphy was cultivated through writing down the Qur’an, the Qur’an is the basis of Islamic law and theology; indeed, as the celebrated fifteenth-century scholar and author Suyuti said, “Everything is based on the Qur’an.” The entire religious life of the Muslim world is built around the text of the Qur’an.

Muslims consider the Quran as a moral and ethical blueprint for a civilized society, which is neither unique to nor restricted to the society of believers, that is, the Muslim community. The Quran explains the importance of compassion, fairness, honesty, and justice. Although the Quran addresses how a devout Muslim should conduct himself or herself with regard to other people, it is especially concerned with the relationship that a devout Muslim has with God. Moreover, the right to interpret the Quran was not restricted to an elite group. Anyone with a pious disposition and the willingness and aptitude could study the Quran.

The Sunna

The Quran is the primary source of Islamic scripture, because it reveals the Word of God, but another primary source is the Sunna. Sunna means “clear path” or, in this context, established practice. Various approaches have been taken to organize the Sunna. First and foremost, the Sunna consists of three basic methods in which a message was transmitted: verbal, practical, and approved. The verbal method consists of the sayings of the Prophet Muhammad that are called hadiths. The practical method includes the actual deeds of the Prophet. The approved method encompasses the actions or sayings of the Companions that the Prophet approved. The Companions were the initial small group who were followers of Muhammad and who referred to themselves as his Companions.

The Quran indicates the importance of the Sunna on several occasions:

You who believe, obey God and the Messenger, and those in authority among you. If you are in dispute over any matter, refer it to God and the Messenger, if you truly believe in God and the Last Day: (4:59).

By your Lord, they will not be true believers until they let you decide between them in all matters of dispute, and find no resistance in their souls to your decisions, accepting them totally (4:65).

When the true believers are summoned to God and His Messenger in order for him to judge between them, they say, “We hear and we obey.” These are the ones who will prosper (24:51–52).

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What makes the Quran the superior source of Islamic teaching is that it is believed to be received from God. The Sunna, on the other hand, consists of recollections of people who witnessed either a verbal, practical, or approved hadith from the Prophet.

The Sunna is a significant source of Islam in its own right for at least three reasons. It reiterates the rules and standards that were already revealed in the Quran, thereby confirming its authenticity. It is a significant aid in explaining or clarifying Quranic verses that are vague or unclear. Finally, it is the source of pronouncements on which the Quran was silent. The rulings from the Sunna, however, could not contradict or oppose a standard that was clearly stated in the Quran. Obviously, it is this last characteristic that makes the Sunna such an important independent source.

The Pillars of Islam

The central beliefs of Islam that unite the umma, the community of believers, and that are prescribed in the Quran are referred to as the Pillars of Islam. The Pillars of Islam are the five practices that devout Muslims are required to follow. Thus, these practices or tenets unite the worldwide community of Islam. The first tenet is the shahada (testimony): “There is no god but God, and Muhammad is His messenger.” The second tenet is the salat (ritual prayer) that is said each day at five different times: dawn, noon, afternoon, sunset, and evening. The third tenet is sawm (the obligatory fasting) during the month of Ramadan. Fasting includes refraining from food, drink, and sexual activity from sunrise to sunset during this month. Exceptions are made for people who are old, ill, or traveling. The fourth tenet is the obligation to participate in the hajj (pilgrimage) to the Kaba in Mecca at least once in a lifetime. The Kaba is a cube-shaped structure that is the major shrine of Islam. Muslim tradition claims that it was built by Abraham and Ishmael. It contains the Black Stone that Muslims believe was given to Abraham by the angel Gabriel. As such, it is considered the sanctuary of the “House of God.” It should also be noted that the pilgrimage is expected of those who are physically and financially able. The fifth tenet is the imposition of the zakat. Zakat means purification and is considered a religious obligation. It is a tax on Muslims for the care of the poor (see Aslan, 2006; Esposito, 2002).

Sunni and Shia

Christianity is divided into several denominations that embrace the basic Christian message. There are differences among the denominations that often deal with biblical interpretations and church governance. Islam is not divided along these same lines, because all devout Muslims adhere to certain core beliefs that include a belief in God, the Quran as divine revelation, the Prophet Muhammad and his teachings, and the basic tenets found in the Pillars of Islam. It should be noted that there are some differences on theological questions, but those are beyond the scope of our purpose.

The significant division in Islam was over the political and religious leadership of the umma, the community of believers, upon the death of Muhammad. When Muhammad died in 632, his efforts to reform the religion of one God was still in its infancy. Because

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Muhammad had not designated a successor, the elders of Medina, the seat of his reform movement, selected Abu Bakr as leader. Abu Bakr had excellent credentials in that he was noted for his piety and wisdom and the fact that he was an advisor and father-in-law to Muhammad. Abu Bakr’s tenure as caliph (successor to Muhammad) lasted only two years. Upon his death, he was succeeded by Umar, who ruled from 634 to 644 and is credited with expanding Islam to additional cities in the region. The third caliph was Uthman, who managed to antagonize a number of people in the Muslim community, which led to his assassination in 656. He was succeeded by the fourth caliph, Ali, who was both a cousin and son-in-law of Muhammad. Some within the Muslim community were angry over Uthman’s murder and opposed Ali’s selection. This led to Ali’s murder in 661.

Two groups emerged over the leadership issues that plagued the umma during its first four decades of existence. Sunni Muslims (from followers of the Sunna of Muhammad) are the main or orthodox branch of Islam. They noted that Muhammad did not name a successor; as a result, they were of the opinion that the most qualified person should be selected as leader or caliph, and the selection should not rely on hereditary succession. From the Sunni perspective, because Muhammad was the last prophet, a caliph’s authority would be limited to the political realm and would not be given a theocratic status. Of course, the caliph was expected to be a protector and defender of the Islamic faith. Thus, Sunnis believe that an Islamic government is a civil matter without any religious authority. Sunni Muslims account for about 85 percent of the adherents to the Islamic faith.

Shia Muslims (from the party of Ali) gradually developed a movement that asserted the hereditary succession of Ali’s descendants to the position of leader, because they believed that Muslims should be ruled by a male descendant of Muhammad. As such, the people should have no voice in determining the ruler, because it is a prophetic matter. These leaders, who were descendants of Ali, were called Imams, and their leadership authority extended to the realms of both religion and politics. As religious leaders, they were considered the interpreters of God’s will. Although they did not have the status of a prophet, the speeches and writings of Imams are considered important religious texts. Shias became the largest sect in Islam, and Shia Muslims, known as Shiites, represent about 15 percent of Muslims worldwide.

Within Shia Islam there are divisions that are based on differences over how many Imams succeeded the Prophet Muhammad. Today, the largest of these divisions are known as Twelver Shias. They believe that Muhammad, the twelfth Imam, who was born in 869 and a descendant of the Prophet Muhammad through his son-in-law Ali, went into hiding in the ninth century. Originally, it was thought that this period of seclusion would not last long. As the period of Occultation continued over centuries, there emerged the belief that the Imam Muhammad would return on Judgment Day.

While the Imam was in seclusion, there emerged the belief among the Shia community that the ulama, the religious scholars, were the only legitimate authority to offer guidance on governance, for it was the ulama who had undertaken long years of study of the Quran and Sunna. The ulama were not mandated to govern, but they were to offer moral and ethical guidance to the Shia community. The Shia community had its greatest concentration and development in Persia (modern-day Iran). Over time, the ulama of the Shia community

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established a clerical hierarchy. The upper echelons of this hierarchy are senior leaders who are called ayatollahs (signs of God) that are noted both for their piety and religious knowledge.

What makes this sect of Islam significant and different from Sunni Islam is that from its inception Islam had not established a church hierarchy or an ordained clergy, as those terms are used in a Christian context. Any Muslim could lead a prayer service or preside over a religious ceremony. Today, every mosque has an imam. Here, the term imam is used in a different context from that mentioned previously. An imam is a respected member of the community who is recognized for his piety and knowledge; he leads the prayer service and provides a Friday sermon (Alsaif, 2007; Aslan, 2006; Esposito, 2002; Martin, 2003).

It is important to interject here that the ulama is not unique to Shia Islam. The term ulama is associated with all Muslim men of extensive religious learning. They initially studied at a madrassa, an informal Islamic religious school. These men went beyond merely memorizing the Quran though. They studied the subject in greater depth and were identified by their community for their religious learning. They became the guardians of the beliefs, values, and practices of the umma. Some became noted as famous theological scholars, while others were noted for their legal scholarship and were referred to as jurists. The elite among the ulama were called upon to serve as judges in important courts, as teachers at the famous schools, and as preachers in the major mosques.

HISTORICAL DEVELOPMENT OF ISLAM As mentioned in the Preface and Introduction, Islamic law will not be examined in the context of a single country, but rather it will be viewed in the manner in which it has influenced the justice system of a few countries associated with Islam. Three countries have been selected; today they are called Saudi Arabia, Iran, and Turkey (see Figure 7.1.) Each was selected because the overwhelming majority of their populations are Muslim, but also because each has embraced Islam in distinct ways. Some of the distinctions are based on the cultural traditions of each country that predate the arrival of Islam; some are based on when Islam was received and how Islam evolved in the geographical areas that we call Saudi Arabia, Iran, and Turkey. In light of this, a brief sketch is presented of the historical reception of Islam to these three regions.

The Arabian Peninsula

In pre-Islamic times, the Arabian Peninsula was inhabited by Bedouins, whose culture was based on a patriarchal tribal social structure. The various tribes initially created unwritten rules that over time established customary laws for a tribe. A single executive and legislative authority, as we use those terms today, did not exist. As a result, there was no organization for the administration of a central government in general or for criminal justice in particular. Law and order was based on rules established by the tribes.

Much of the region consisted of a vast desert terrain, and its significance to the rest of the known world was limited to that of providing important trade routes, especially when the principal empires in the region—Persian and Byzantium—were at war with one another.

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