By BECKIE LOEWENSTEIN AND FENGQIONG CHEN
In the mountains of Shanxi and Henan provinces last year, Chinese owners of illegal mines and brick kilns forced Chinese adults and children into slave labor. A Chinese television station broke the story. BBC News reported that more than 160 people were involved in trafficking almost 570 people and 50 children.
Wang Dongji—the Chinese Communist Party secretary for Caosheng village, Shanxi province—looked the other way as his son, the kiln operator, ran the kiln without the required licenses and inspections.
President Hu Jintao and Prime Minister Wen Jiabao called for a thorough investigation, resulting in the indictment of 96 local officials. Yu Youjun, the governor of Shanxi province, felt compelled to issue a public apology.
The anti-rightist movement of 1959 had no use for law. No new law students were admitted to Peking University from 1966 to 1971. After the Cultural Revolution ended in 1976, the restored leadership of the Chinese Communist Party wanted to provide a more predictable form of government and chose a legal framework.
In 1982 Deng Xiaoping announced the reopening and the integration of China’s economy with the global market. A legal framework could create a more predictable and secure environment for foreign investments. From a standing start, the government introduced economic laws.
Good lawyers, courts, and commercial law are all pre-requisites for economic development. Property rights law and process of enforcement can also lead to civil rights.
From 1996 to 1997 legal training centers began to reemerge on the scene in China, particularly in Beijing. Legal studies occurred at the graduate level. But the pedagogy consisted of rote memorization.
“The laws schools built in China between 1978 and 2002 were not constructed with the need to build a rule of law society, but with the aim to help law students memorize the laws generated by National People’s Congress,” said Jeffrey Lehman, President of the Joint Center for China-U.S. Law & Policy Studies at Peking University and Beijing Foreign Studies University, at a lecture at the University of Southern California.
The result was that graduates of Chinese law could not compete in the global economy.
Law schools in China received more financial support from private philanthropists and law firms in Hong Kong, Taiwan, and the United States than the Chinese government.
China now has almost 200,000 lawyers and adds 25,000 every year. In contrast, the United States has 1 million lawyers and adds 40,000 a year. This indicates the professionalization of lawyers in China.
In light of thirty years of economic achievement since Deng Xiaoping’s opening policy, China's State Council published a white paper highlighting China's efforts to promote the rule of law (February 2008). The paper opens with praise for the Chinese people for their "protracted and unremitting struggles for democracy, freedom, equality and the building of a country under the rule of law."
The National People’s Congress and its Standing Committee enacted six laws from 1949 to 1978. Two hundred and twenty-three laws were passed from 1978 to 2008. In addition, the State Council, local people’s congresses, and ethnic autonomous areas have also enacted thousands of regulations. Laws include Constitution-related laws, civil and commercial laws, administrative laws, economic laws, laws on society, criminal law, and litigation and non-litigation procedural laws.
The Chinese leaders focused on a legal framework for economic growth. Many of the laws defined how domestic and international parties could legally act in China’s socialist market.
"They are really trying to balance this emphasis they've put on growth for the past thirty years with all the new protective laws that they have," Gallagher said.
This legislation coaxed foreigners, including Americans, to invest in China. Foreign investors have by and large accepted the legal proceedings as part of doing business in China.
"Foreign direct investment allows economic reform to go forwards without creating demand for political reform," Gallagher said. "That kind of delayed pressure for political change in China has had this delaying effect on political reform, particularly political liberalization.”
Some say the lack of political reform may constrain future economic development.
"China hopes for a stable society," said Zhou Lin Bin, a law professor at China’s Sun Yat-Sen University. "So the political reform lags behind the economic reform.”
In October 2007 the U.S. Congressional-Executive Commission on China cited the increased repression of human rights, harassment of legal advocates and restrictions on Chinese reporters as indications of the "stalled development of the rule of law in China during 2006-2007.”
In March 2008 the U.S. State Department released its “2007 Country Reports on Human Rights Practices.” The report cited abuses that represent China as society without rule of law:
The government continued to monitor, harass, detain, arrest, and imprison journalists, writers, activists, and defense lawyers and their families, many of whom were seeking to exercise their rights under law. The party and state exercised strict political control of courts and judges, conducted closed trials and carried out administrative detention. Executions often took place on the day of conviction or immediately after the denial of an appeal. A lack of due process and restrictions on lawyers further limited progress toward rule of law.
Both of these publications opted to build pressure on the Beijing government for political reform.
A rule of law society distinguishes between the legal and illegal, conceive of law and legal institutions, limit arbitrary state action to a certain degree, and verify whether laws are valid and binding.
The World Bank Institute’s Worldwide Governance Indicators research project defines rule of law as the “extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, the police, and the courts, as well as the likelihood of crime and violence.”
Differing perceptions on what constitutes rule of law in China changes the criteria used to determine when and if China reaches a certain benchmark.
"China’s law should be judged by the criteria on whether it solves the problems in China, not by the criteria on whether it is like the American system," said Liu Songshan, a professor at East China University of Political Science and Law, in an interview. "China’s People’s Congress does not have a balance of power between the legislative, judicial, and executive branches of government, as seen in the United States.”
As a developing country China still has few safeguards for civil and political rights. There is a general correspondence between wealth and an increase in civil and political rights.
"For a middle income country, China is doing worse on civil and political rights—in other words, civil and political rights are more constrained," said Randy Peerenboom, Director of the Oxford Foundation for Law and the Justice and Society's China Rule of Law Program. "If China were at some point to democratize, the civil and political rights scores would also improve."
China passes laws, but does not implement them in a practical way. Lack of implementation of laws remains a major problem in creating a rule of law environment in China.
A recently enacted labor law demonstrates how law enforcement looks the other way.
China’s new labor contract law, passed last year, requires that every company pay for workers’ social insurance—a pension paid for by the individual, company, and government. Implementation of this law would increase the costs for the company. Since higher cost diminishes the attractiveness of doing business in China, government officials are wary of enforcing the labor contract law.
"Just say to China that they should enforce their own laws, and hold them to their own standards," said Mary Gallagher, University of Michigan political scientist, in an interview. "They passed those laws, nobody's forced them to pass those laws, and so those laws should be implemented.”
Economic growth has widened the gap in development between the eastern and western regions of China. Also, southeastern China accumulates more wealth than northeastern China. The disparity in wealth between the urban and rural areas corresponds with more professional lawyers working in the coastal cities than the rural villages.
Few lawyers live and work in the countryside. Rice roots legal workers do not need to take the national bar exam and lack training as lawyers. Familiar with the local practices and customs, they can provide essential legal services to the Chinese peasantry. For instance, they can give advice on contracts or compensation for work-related injuries, help people go to court in noncriminal matters, and help people solve disputes.
Peasants lose land to developers and face environmental pollution when factories in the countryside emit toxic waste. These issues are more difficult to confront without a professional class of lawyers.
“Nothing is going to happen overnight. There is potential in both rural and urban groups in China for development of law. In rural China people have an innate sense of justice and understand if they are treated fairly and what that means and that is a founding understanding of rule of law. It will not just be an urban phenomenon,” said William Alford, Henry L. Stimson Professor of Law and the Director of East Asian Legal Studies at Harvard Law School.
The reform of legal institutions has been slower in poorer rural areas than wealthier urban areas.
"People in the rural areas have more disputes but they are less likely to go to courts to have them solved, and when they do they are less happy," Peerenboom said. "People in urban areas—which are wealthier and so on—tend to have fewer disputes to begin with and when they do have disputes they go to courts more often and they tend to be happier with the experience."
Rule by man—or building connections and relationships with those in power—continues to be a local requirement.
Since the passage of a law in 1989 it has been legal for citizens to start court cases against government officials. Individuals have the legal right to take anyone to court. Legal rights lack safeguards.
"The administrative department has too much protection while the citizenry lacks relative protection," said Liu.
Even if an ordinary citizen wins a case against a party or government official, the law enforcement department may not enforce the court decision. For example, many workers face immense challenges when taking their employers to court.
"The more tightly connected the employer is to the local government, the harder it is for the court to implement that order," Gallagher said.
Due process of law in court does not always mean due process of enforcing the court decision. The relative immunity of the Chinese Communist Party, government officials, and well-connected individuals remains a formidable bulwark to develop a rule of law society.
“Legal workers communicate to ordinary people about what the law entitles them to,” said Alford. “Rice roots legal workers can go to officials and use their good will, their guanxi, to kind of encourage implementation. There is no easy answer. That is a problem for everybody in China.”
The answer is for China to build an independent judiciary system. Increasing the independence of lawyers, judges, and law enforcement officials could improve the legal process.
The government seeks to educate the populace on existing legal procedures via publication of laws in newspapers and media campaigns.
The media can also publish articles to pressure the government to implement the laws.
Wealthier urban areas are more likely to have media outlets than poorer rural areas.
“Chinese villages don’t have so much in the way of a newspaper. My guess is lawyers in big cities are more inclined to use the media,” said Alford.
Media coverage of legal issues can prove an effective way to garner public interest in the legal system. Increasing public awareness of a problem often calls for a legal resolution.
"Often what they [complainants] will do to in order to help their case is to involve the media to publicize the problem," Gallagher said. "But again if it's a pretty small problem, if it's an individual problem, it's pretty hard for the worker to do it."
In particular, foreign companies are sensitive to media coverage because the publication of their violations in China creates bad publicity for them both in the home and Chinese market.
In March 2007 Chinese journalists in Guangzhou investigated how foreign fast-food chains including McDonald's, KFC, and Pizza Hut violated China's labor laws. The negative publicity pressured the fast-food chains into allowing their workers to unionize.
"It seems like the biggest pressure that is happening right now is from workers themselves—going to courts, going to arbitration, going to the media, protesting in the streets and demonstrating to put pressure on local governments," Gallagher said.
Those citizens who esteem their legal rights will continue to encourage government officials to do the same.
In the mountains of Shanxi and Henan provinces last year, Chinese owners of illegal mines and brick kilns forced Chinese adults and children into slave labor. A Chinese television station broke the story. BBC News reported that more than 160 people were involved in trafficking almost 570 people and 50 children.
Wang Dongji—the Chinese Communist Party secretary for Caosheng village, Shanxi province—looked the other way as his son, the kiln operator, ran the kiln without the required licenses and inspections.
President Hu Jintao and Prime Minister Wen Jiabao called for a thorough investigation, resulting in the indictment of 96 local officials. Yu Youjun, the governor of Shanxi province, felt compelled to issue a public apology.
The anti-rightist movement of 1959 had no use for law. No new law students were admitted to Peking University from 1966 to 1971. After the Cultural Revolution ended in 1976, the restored leadership of the Chinese Communist Party wanted to provide a more predictable form of government and chose a legal framework.
In 1982 Deng Xiaoping announced the reopening and the integration of China’s economy with the global market. A legal framework could create a more predictable and secure environment for foreign investments. From a standing start, the government introduced economic laws.
Good lawyers, courts, and commercial law are all pre-requisites for economic development. Property rights law and process of enforcement can also lead to civil rights.
From 1996 to 1997 legal training centers began to reemerge on the scene in China, particularly in Beijing. Legal studies occurred at the graduate level. But the pedagogy consisted of rote memorization.
“The laws schools built in China between 1978 and 2002 were not constructed with the need to build a rule of law society, but with the aim to help law students memorize the laws generated by National People’s Congress,” said Jeffrey Lehman, President of the Joint Center for China-U.S. Law & Policy Studies at Peking University and Beijing Foreign Studies University, at a lecture at the University of Southern California.
The result was that graduates of Chinese law could not compete in the global economy.
Law schools in China received more financial support from private philanthropists and law firms in Hong Kong, Taiwan, and the United States than the Chinese government.
China now has almost 200,000 lawyers and adds 25,000 every year. In contrast, the United States has 1 million lawyers and adds 40,000 a year. This indicates the professionalization of lawyers in China.
In light of thirty years of economic achievement since Deng Xiaoping’s opening policy, China's State Council published a white paper highlighting China's efforts to promote the rule of law (February 2008). The paper opens with praise for the Chinese people for their "protracted and unremitting struggles for democracy, freedom, equality and the building of a country under the rule of law."
The National People’s Congress and its Standing Committee enacted six laws from 1949 to 1978. Two hundred and twenty-three laws were passed from 1978 to 2008. In addition, the State Council, local people’s congresses, and ethnic autonomous areas have also enacted thousands of regulations. Laws include Constitution-related laws, civil and commercial laws, administrative laws, economic laws, laws on society, criminal law, and litigation and non-litigation procedural laws.
The Chinese leaders focused on a legal framework for economic growth. Many of the laws defined how domestic and international parties could legally act in China’s socialist market.
"They are really trying to balance this emphasis they've put on growth for the past thirty years with all the new protective laws that they have," Gallagher said.
This legislation coaxed foreigners, including Americans, to invest in China. Foreign investors have by and large accepted the legal proceedings as part of doing business in China.
"Foreign direct investment allows economic reform to go forwards without creating demand for political reform," Gallagher said. "That kind of delayed pressure for political change in China has had this delaying effect on political reform, particularly political liberalization.”
Some say the lack of political reform may constrain future economic development.
"China hopes for a stable society," said Zhou Lin Bin, a law professor at China’s Sun Yat-Sen University. "So the political reform lags behind the economic reform.”
In October 2007 the U.S. Congressional-Executive Commission on China cited the increased repression of human rights, harassment of legal advocates and restrictions on Chinese reporters as indications of the "stalled development of the rule of law in China during 2006-2007.”
In March 2008 the U.S. State Department released its “2007 Country Reports on Human Rights Practices.” The report cited abuses that represent China as society without rule of law:
The government continued to monitor, harass, detain, arrest, and imprison journalists, writers, activists, and defense lawyers and their families, many of whom were seeking to exercise their rights under law. The party and state exercised strict political control of courts and judges, conducted closed trials and carried out administrative detention. Executions often took place on the day of conviction or immediately after the denial of an appeal. A lack of due process and restrictions on lawyers further limited progress toward rule of law.
Both of these publications opted to build pressure on the Beijing government for political reform.
A rule of law society distinguishes between the legal and illegal, conceive of law and legal institutions, limit arbitrary state action to a certain degree, and verify whether laws are valid and binding.
The World Bank Institute’s Worldwide Governance Indicators research project defines rule of law as the “extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, the police, and the courts, as well as the likelihood of crime and violence.”
Differing perceptions on what constitutes rule of law in China changes the criteria used to determine when and if China reaches a certain benchmark.
"China’s law should be judged by the criteria on whether it solves the problems in China, not by the criteria on whether it is like the American system," said Liu Songshan, a professor at East China University of Political Science and Law, in an interview. "China’s People’s Congress does not have a balance of power between the legislative, judicial, and executive branches of government, as seen in the United States.”
As a developing country China still has few safeguards for civil and political rights. There is a general correspondence between wealth and an increase in civil and political rights.
"For a middle income country, China is doing worse on civil and political rights—in other words, civil and political rights are more constrained," said Randy Peerenboom, Director of the Oxford Foundation for Law and the Justice and Society's China Rule of Law Program. "If China were at some point to democratize, the civil and political rights scores would also improve."
China passes laws, but does not implement them in a practical way. Lack of implementation of laws remains a major problem in creating a rule of law environment in China.
A recently enacted labor law demonstrates how law enforcement looks the other way.
China’s new labor contract law, passed last year, requires that every company pay for workers’ social insurance—a pension paid for by the individual, company, and government. Implementation of this law would increase the costs for the company. Since higher cost diminishes the attractiveness of doing business in China, government officials are wary of enforcing the labor contract law.
"Just say to China that they should enforce their own laws, and hold them to their own standards," said Mary Gallagher, University of Michigan political scientist, in an interview. "They passed those laws, nobody's forced them to pass those laws, and so those laws should be implemented.”
Economic growth has widened the gap in development between the eastern and western regions of China. Also, southeastern China accumulates more wealth than northeastern China. The disparity in wealth between the urban and rural areas corresponds with more professional lawyers working in the coastal cities than the rural villages.
Few lawyers live and work in the countryside. Rice roots legal workers do not need to take the national bar exam and lack training as lawyers. Familiar with the local practices and customs, they can provide essential legal services to the Chinese peasantry. For instance, they can give advice on contracts or compensation for work-related injuries, help people go to court in noncriminal matters, and help people solve disputes.
Peasants lose land to developers and face environmental pollution when factories in the countryside emit toxic waste. These issues are more difficult to confront without a professional class of lawyers.
“Nothing is going to happen overnight. There is potential in both rural and urban groups in China for development of law. In rural China people have an innate sense of justice and understand if they are treated fairly and what that means and that is a founding understanding of rule of law. It will not just be an urban phenomenon,” said William Alford, Henry L. Stimson Professor of Law and the Director of East Asian Legal Studies at Harvard Law School.
The reform of legal institutions has been slower in poorer rural areas than wealthier urban areas.
"People in the rural areas have more disputes but they are less likely to go to courts to have them solved, and when they do they are less happy," Peerenboom said. "People in urban areas—which are wealthier and so on—tend to have fewer disputes to begin with and when they do have disputes they go to courts more often and they tend to be happier with the experience."
Rule by man—or building connections and relationships with those in power—continues to be a local requirement.
Since the passage of a law in 1989 it has been legal for citizens to start court cases against government officials. Individuals have the legal right to take anyone to court. Legal rights lack safeguards.
"The administrative department has too much protection while the citizenry lacks relative protection," said Liu.
Even if an ordinary citizen wins a case against a party or government official, the law enforcement department may not enforce the court decision. For example, many workers face immense challenges when taking their employers to court.
"The more tightly connected the employer is to the local government, the harder it is for the court to implement that order," Gallagher said.
Due process of law in court does not always mean due process of enforcing the court decision. The relative immunity of the Chinese Communist Party, government officials, and well-connected individuals remains a formidable bulwark to develop a rule of law society.
“Legal workers communicate to ordinary people about what the law entitles them to,” said Alford. “Rice roots legal workers can go to officials and use their good will, their guanxi, to kind of encourage implementation. There is no easy answer. That is a problem for everybody in China.”
The answer is for China to build an independent judiciary system. Increasing the independence of lawyers, judges, and law enforcement officials could improve the legal process.
The government seeks to educate the populace on existing legal procedures via publication of laws in newspapers and media campaigns.
The media can also publish articles to pressure the government to implement the laws.
Wealthier urban areas are more likely to have media outlets than poorer rural areas.
“Chinese villages don’t have so much in the way of a newspaper. My guess is lawyers in big cities are more inclined to use the media,” said Alford.
Media coverage of legal issues can prove an effective way to garner public interest in the legal system. Increasing public awareness of a problem often calls for a legal resolution.
"Often what they [complainants] will do to in order to help their case is to involve the media to publicize the problem," Gallagher said. "But again if it's a pretty small problem, if it's an individual problem, it's pretty hard for the worker to do it."
In particular, foreign companies are sensitive to media coverage because the publication of their violations in China creates bad publicity for them both in the home and Chinese market.
In March 2007 Chinese journalists in Guangzhou investigated how foreign fast-food chains including McDonald's, KFC, and Pizza Hut violated China's labor laws. The negative publicity pressured the fast-food chains into allowing their workers to unionize.
"It seems like the biggest pressure that is happening right now is from workers themselves—going to courts, going to arbitration, going to the media, protesting in the streets and demonstrating to put pressure on local governments," Gallagher said.
Those citizens who esteem their legal rights will continue to encourage government officials to do the same.