Published by ..David Cowhig’s Translation Blog
During my five years at the U.S. Embassy Beijing Environment, Science and Technology Section 2006 – 2012, I found much grand-scale and local politics, law, and economics behind the phenomena I was struggling to understand. China wanted to join the WTO yet the Chinese provinces with all their protectionist measures seemed not even to be members of a ‘China Trade Organization’? Reading the China Public Health Yearbook a few months after I arrived, the national public health pictures didn’t match the province-by-province picture. The prevalence of some diseases nationwide was higher than the highest reported level of any province. Apparently there was much data correction in Beijing of unreliable provincial reports. Leading me to wonder how much did Beijing really knew? Or more likely they knew, but decided to pretend they didn’t until they could do something about it?
There was law although not operating the way I might expect from my scant experience of it in the USA — laws seemed vague and sometimes regulations supposedly based on the laws were sometimes confidential. Parenthetically one of my minor coups in Beijing was getting a copy of the “internal distribution only” book that explained the PRC’s then opaque reporting scale for air pollution from a kind Shanxi Province environmental protection official.
Then there was the parallel system of officials documents and instructions with red headers issued by Party and government organizations at all levels. To my untutored eye, these were sort of laws too, though in English we might call them administrative instructions though sometimes they weren’t based on any law — sort of instructions pacing the void with no clear legal basis but underpinned by the general understanding that the leader’s and party views congealed into document form were as legitimate as a law.
Law in the PRC is an intriguing topic. When I was at Bowdoin College in the mid 1970s, my Chinese history professor John Langlois invited Harvard Law School Professor Jerome Cohen to visit. Professor Cohen said that when he started up program on Chinese law, people would laugh at him and “There is no law in China”. By the time I arrived at U.S. Embassy Beijing in 1996, the PRC National People’s Congress had been elaborating the Chinese legal system for the nearly twenty years since the second founding of the PRC by Hua Guofeng and Deng Xiaoping.
In late 1997 I went along with visiting Senator Frank Murkowski and some colleagues to a dinner at the Great Hall of the People and a meeting with PRC National People’s Congress Natural Resources and Environment Committee Chairman Qu Geping and former head of the PRC environmental protection agency Senator Murkowski that the conception of obedience to law is still quite weak in China. Qu said that the National People’s Congress of China may be the only parliamentary body in the world that needs to send investigation teams through the countryside to see if the laws are being obeyed.
When I visited the Environmental Bureau of Shanxi Province in Taiyuan, I asked them about their coordination with the central government and other provinces. I was told “Those officials from the central government only come by once a year to give us a report card…. We don’t really have anything to do with the environmental protection authorities of other provinces.” Vice Director the Environment and Development Research Institute at the Chinese Academy of Social Sciences Zheng Yisheng was a great help in helping me better understand how law and political system affected environmental work.
I had the impression of vague laws, instructions from on high (actually from many different levels of on high — different layers of government and different ministries or bureaus within the various levels) . Instructions issued from a ministry or bureau at the same level of government didn’t seem to apply to other ministries/bureaus at the same level. Instructions seemed to have a short half-life, they would be issued and re-issued every year with slight changes. Though the law seemed vague to an outsider like myself, that was perhaps by design — different strokes for different folks and localities. Even “instructions” (if that is the right word) from the Central Committee were often called opinions. When I asked a Chinese official why some documents are called opinions, he replied that they are called opinions because they are guidance that is to be applied or not and implemented according to local circumstances.
Judges too get instructions on more sensitive cases from the Political and Legal Affairs Committee ????? of their local party organization. So I got the impression of a legal/document system that was very flexible, that could be a positive thing or could be arbitrary, and varied considerably from place to place according to the competence (and corruption) of local officials and their calculation of what they could get away with. Sometimes in the pages of a PRC State Council thinktank publication for officials? Information for Deciders ??????? I would see articles about local policy experiments in areas that were given exemptions from certain central government laws or regulations to try something new.
China has laws as well as documents that come down from on high (though perhaps not quite imperial rescripts) and the effect they have or don’t have on society reminds me of the popular saying “for every measure that comes down from on high, a countermeasure emerges from below” ?????????
The legal and document system for regulating society interpenetrate and shape one another. The discussion of the dual rule by law/document system reminds me somewhat of how New China described itself in the 1970s and 1980s as “walking on two legs” — meshing the best of the Chinese and the foreign in diverse fields such as science, medicine and music with greater or lesser difficulty. Perhaps Chinese laws are best left vague because the documents provide an intermediary layer of interpretation. Perhaps given the at times arbitrary power of Chinese officials, documents provide a shield easier for local people to take refuge behind than even the most straightforward interpretation of a law. Interpretations might leave people open to attack in the often very tense political atmosphere of the 1950s and 1960s and even later at times depending upon the political weather and the whims of the leader.
Susan Finder, a scholar at Peking University’s School of Transnational Law, recommended the article which I have translated below. It gives us some good insights into the rule by law/rule by document regulatory ecosystem of Chinese society.
Professor Finder’s Supreme People’s Court Monitor blog, along with China Law Translate and the China Collection , is one of the online resources about PRC law that I find helpful.
Read the rest of the article at https://gaodawei.wordpress.com/2021/01/09/2017-zhang-xuebo-observations-on-the-history-of-rule-by-document-1982-2017/
