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Chinese Law in Context: The Role of Hierarchy

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Writing about China, J. Maarten Troost alluded in the subtitle of his book Lost on Planet China that it was the world’s most mystifying nation. Such conclusions are not farfetched; even the Chinese people are well-versed in the complexities their country stands for: last year, Chinese ambassador to the United Kingdom commented that China had a communist government but was not a communist country. As expected, his statement drew several dissensions as well as discussions.

Back to I950’s and 60’s, the world population on average was about 3 billion, forty years later, current estimates places it at 7 billion. It is a steep escalation, unlike any time in history and pre-history. Out of that huge figure, China lays claim to over a billion people and currently, has about forty cities with over a million inhabitants. The “rule of law” is regarded by most of the economists as a prerequisite for economic growth, but China grows exponentially with exactly having one. The “sleeping giant” has awakened, and relentlessly continues to conquer territories, albeit peacefully. More disturbing, especially to the West, is the fact that China is not only awake, but has become insomniac due to overdose of “political modafinil.” It is, therefore, of dire interest to understand what laws bind this unique people together, how they are made, interpreted and implemented. The Chinese body of law is a very sophisticated and complicated one; hence, this essay seeks to broach the constitutional codes in simplified terms, through visual fields permitted to the outside observer.

The mainland China operates a kind of legal system that is civil-oriented while autonomous regions like Hong Kong and Macau operates on separate judicial atmospheres. The Post-Mao era heralded the beginning of a modern legal and judicial system in China, the country’s legal system started to experience several gradual reforms. Against such an historical backdrop, it becomes easier to appreciate the dramatic reformations China has experienced in the last three decade. Though, the judicial system as much as it theoretically adjudicates independently of the administrative bloc, is not entirely independent from the interference and supremacy of the Chinese Communist Party (CCP). This meddlesome behaviour of the CCP usually creates a disparity between what the constitution states and what the State allows. 

The need to enact new laws in China is majorly dictated by the “five-year-plan” of the incumbent National People’s Congress (NPC), equivalent to the British Parliament. NPC is China’s highest tier of state power, and at its head is the sovereign leadership of the “Standing Committee.” Legislative enactments in China are, in theory, a result of a multi-level and multifaceted system of authority both at the National and local level. An attempt at understanding this complex framework of judicial hierarchy and the ambiguity of the scope and limit assigned to each tier must be done before the actual less complex but more informal process of law making is analysed.

Sitting at the top of China’s legal hierarchy is the Constitution; the current document was adopted in 1982, with its most recent revision done in 2004. According to that constitution, the NPC and its Standing Committee enjoys the primary legislative power to revise the constitution and enact “basic laws.” The next law-making authority is the State Council, whose vague functions can be inferred from the legal language the constitution describes for it: “to exercise such other functions and powers as the National People’s Congress or its Standing Committee may assign it.” The scepticism as to whether the relationship between the State Council and the NPC is not the direct opposite is garnered from the observation that the leading CCP, which literally is the State Council, controls the composition of the Standing Committee and the latter controls the NPC. Therefore, it is apropos to think that what the constitution meant to say was that the NPC or its Standing Committee would exercise such other functions and powers as the State Council assigns it.

The local level (regions, provinces and municipalities) of law-making has suffered several amendments. Current constitution allows the People’s Congress at the local level have some legislative powers to enact laws which must be congruous with the provision of the constitutions and must not contravene it in any way. Bureaucracy enforces that, these local rules and regulations must be reported to and approved by the State Council and the Standing Committee of the NPC for recording before they acquire their legal effect.

Generally, the Chinese law-making process consists of the following five phases: initiation; drafting of bills; submission of bill for inclusion in the agenda; deliberation and consultation; adoption and promulgation. The Chinese bill initiation takes a utilitarian approach, with bills emanating as need arises to suit its five-year-plan, currently, in its 12th edition. Details of how bills are drafted are not clear; a drafting group, consisting of legal experts, technocrats and bureaucrats, is usually commissioned for this purpose. The Procedural Rules of the China’s NPC for the inclusion of a bill into its agenda for deliberation is quite restrictive. The sole right to initiate a bill is bestowed upon the Presidium, the Standing Committee, the State Council, the courts and other main tiers of China’s judicial structure with little or no public participation. Bills propagated by the CCP leadership should find easy inclusion into the agenda; the system is well-structured to ensure that there is uniformity of ideologies and philosophies across the leadership both vertically and horizontally. A notable exception to this observation was the approval in 2007 of the Property Law bill which was first drafted around 1993, but was faced with several oppositions.

Concerning “Deliberation and Consultation,” there have been recent attempts by the Chinese government to involve the public, even though informally, in the process. Inclusion of bills for deliberation must first be approved by the council of Chairperson, after which, a consultation and discussions with legal experts would be held, depending on the outcome of such consultation, a second deliberation is held by the Standing Committee for possible adoption. The President is constitutionally the only one allowed to promulgate a law after it has been adopted through a majority vote in the NPC. From a more administrative perspective, the Premier has the power to issue and approve administrative rules and regulations.

From the standpoint of an outside observer, the ambiguity that besets the Chinese law-making process can be regarded as a deliberate tool to allow the country’s leadership to interfere and permeate all sectors of the system with flexibility and at will. It must also be noted that only the NPC has the right to criminalize an action. Laws that cannot be understood are useless; therefore, it is paramount that the civil applications of these laws are interpreted. The Chinese jurisprudential division recognises three level of interpretation: legislative, administrative, and judicial. In theory, the most important is the judicial interpretation by the Supreme People’s Court (SPC). The role of the SPC as quoted in a Chinese journal is to “give judicial explanation of the specified utilisation of the laws in the judicial process that must be carried out nationwide.”

The independency of the SPC interpretation is questionable

The Court has no authority to interpret administrative regulations, government or local rules and regulations or even the constitution. It is accountable to the NPC and its Standing Committee. The SPC supervises the activities of all other courts at judicial strata, and through a feedback process ensures that the lower courts are in accordance to the available constitution. It works in close coordination with the procurators, police, and other administrative agencies to ensure certainty in interpretation.

China’s law-making process (Mainland China) is quite unique with autonomous regions such as Hong Kong and Macau reflecting more of the British and Portuguese legal traditions respectively. Notwithstanding loopholes in its legal system, the country continues to grow its GDP every year; its focus on delivery of utility to its people over profit is somewhat remarkable. It follows then, that anything which is economically good is also judicially right.

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