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Laws on Paper vs. Law in Practice

December 01, 2011

http://blogs.wsj.com/chinarealtime/2011/11/21/in-china-laws-on-paper-vs-law-in-practice/

Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).

China has enacted 240 laws, 706 administrative regulations, and over 8,600 local regulations since August 2011, according to the latest official government review of China’s legal system.

But what do these add up to in practice?

A white paper issued by the State Council on last month pays too much attention to laws on paper, while slighting meaningful discussion of how the legal system actually works—or doesn’t.

Tracing legislation since the People’s Republic was established, especially since 1978, the State Council’s lengthy review does reflect the extraordinary progress of post-Mao China. It cites successive Constitutions and important laws among the legislative flood that within the short span of 30 years has produced the framework for the “socialist market economy” and all the branches of the modern Chinese state. The document celebrates the creation of a ”socialist system of laws with Chinese characteristics,” which is hailed as having established the “legal foundation for economic, political, cultural and social development.”

Knowledgeable observers will have difficulty recognizing some aspects of the system that is described. For example, the white paper claims that China has developed “a comparatively complete legal system to protect human rights” – a statement contradicted by the country’s continuing repression of dissent and heightened censorship of the media, and by an ongoing assault on lawyers who lawfully assert their clients’ rights.

Rather than dissecting obviously questionable claims, however, a hard look at what the document omits yields useful insight into China’s legal system.

One message that is conspicuously muted is the need to resist interference with the independence of decision-making by the courts and procuracy. The white paper states that the courts and procuracy exercise their power “independently,” which is flatly not the case.

An editorial published in the state-run China Daily after the white paper was issued shares the celebratory tone of the document, but adds a note of caution:

….just as the white paper has observed, having laws alone does not mean rule of law. More needs to be done in order to add teeth to our laws. The judiciary must be divested from departmental and local interests. And those in positions of power, no matter institutions or individuals, must set the right example.

None other than Wen Jiabao, China’s Premier, has called for an independent judiciary in stronger language than is used in the latest document. In an interview at the World Economic Forum in Geneva in September of this year, Premier Wen said: “We need to uphold judicial justice. Procuratorial and judicial authorities should keep their due independence and be free from interference by any administrative organ, social group or individual.”

In a speech at the same conference, Wen elaborated further on the point. “The most important mission of a ruling party is to abide by and act in strict accordance with the Constitution and the laws,” he said. “The Party should not replace the government in governance, and problems of absolute power and overconcentration of power should be redressed.”

This last statement was interpreted by one knowledgeable foreign observer, Elizabeth Economy, as meaning that “the Party does not act according to the Constitution; and the Party abuses its power.”

The white paper also underemphasizes the endemic instances of poor law enforcement or nonenforcement of the very laws whose existence it celebrates, though it does acknowledge the issue:

The vitality of laws lies in their enforcement. …Now, the problem of ensuring that laws are observed and strictly enforced and that lawbreakers are prosecuted has become more pronounced and pressing. Therefore, China will take active and effective steps to guarantee the effective enforcement of the Constitution and laws, and accelerate the advance of the rule of law and the building of a socialist country under the rule of law.

One example of this problem appeared in a report on food safety in the China Daily the day before the white paper was published. The State Council cited the Food Safety Law as an example of laws enacted “to protect the people’s health and safety,” but the China Daily article, consistent with other reports of poor product safety that appear almost daily in the Chinese media, told of farmers adding a harmful chemical to food given to sheep. The report went on to quote a researcher at the China Animal Agricultural Association as saying that local officials “always try to conceal their malpractice when such food safety issues are exposed because it is their dereliction that partly caused such problems.”

Conspicuously absent from the white paper is any discussion of conflicts between laws and the policies that force local governments to chose between them. For example, on the day the white paper was published, the China Daily carried a story about pressures on to “drive up” local GDP. It said that local governments may “gobble up land for economic development” resulting in “illegal land use” that “may become rampant.” Examples included “illegally permitting projects like golf courses, railways and industrial parks to attract investment.” (In 2004, the State Council issued a notice to suspend construction of new golf courses, but since then more than 400 golf courses have been constructed across the country.)

The white paper is not completely devoid of comments on the relation between law and society, acknowledging in a passage near the bottom that law must evolve:

Social practice is the foundation of laws, and laws encapsulate practical experience. Social practice is endless, and legislative work should also constantly move forward with the times. Building socialism with Chinese characteristics is a long-term historic task. Improving the socialist system of laws with Chinese characteristics is also a long-term and arduous historic task, and it must advance in tandem with the practice of socialism with Chinese characteristics.

By preceding the change of leadership next year, this document could mark a pause in legislative activity. Since the next leaders have not yet been officially chosen, their agenda is unknown.

Given the problems unmentioned in the white paper that have been noted here, more attention should be placed on how laws are implemented than on what they say. What is necessary – someday– is a shift from using law as a political tool to promoting it as a force in Chinese society more distinct from Party policy. That, however, depends on the leadership’s willingness to endow laws with greater significance than they have today. The task is challenging, but vital for China’s governance.

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