Balkinization: A guide to developing scientifically in China

A guide to developing scientifically in China

Lauren Hilgers

The Party Congress wrapped up this Monday with a new roster of leaders and a series of amendments to China’s constitution. All local leaders were encouraged to give thought to the new constitutional changes, particularly the addition from Hu Jintao, the party’s leader.

Hu’s amendment, the “scientific outlook on development,” joins a long line of enigmatic slogans that have been added into China’s most recent constitution. The constitution, which can be read in English here without the most recent amendments, is the PRC’s fourth and was adopted in 1982 during the aftermath of the Cultural Revolution. After five sessions of amendments, the constitution mentions not only “Mao Zedong Thought” but also “Deng Xiaoping Theory” and, a piece of Jiang Zemin’s legacy, the “three represents.” While the slogan is all that appears in the amendment, the meat of the ideas were developed in a series of speeches given during Jiang’s tenure and are listed on the Party’s website in English. These represents, intended to guide the role of the communist party, are:

- Representing the development trends of China’s advanced productive forces
- Representing the orientation of China’s advanced culture
- Representing the fundamental interests of the overwhelming majority of the Chinese people.

Jiang’s addition was a move to give “productive forces” or, loosely translated, market forces, a place in the Communist framework. “Scientific outlook on development” is likely a continuation of this theme–cementing China’s position in the early stages of socialism. "In light of the basic reality that China is in the primary stage of socialism, the Scientific Outlook on Development has been formulated to meet new requirements of development by analyzing China's own practice and drawing on the experience of other countries in development," Hu told the congress.

The term fits with China’s love of five-year, ten-year and twenty-year plans. The sentiment appears to be that, if the government could just find the right formula, the country’s massive transformation should run without any bumps or glitches.

But what does it all really mean? As might be expected, the interpretation of these phrases has been a source of some contention. The only body currently authorized in China to interpret or enforce the constitution is the National People’s Congress (NPC). Interpretation of general legislation is also left up to the NPC or other issuing body–if a law is created at a local level, those local legislators should be consulted. When faced with conflicting provincial and national legislation, or legislation potentially in violation of the constitution, courts are required to consult the congress to get clarification on laws and direction on rulings. The Supreme People’s Court, the constitution states, is “responsible to the National People’s Congress and its Standing Committee.”

The NPC, represented by its standing committee when not in session, is fully occupied with passing laws. Interpretations sometimes never come. If they do, there are countless delays. This leaves the courts (and judges in particular) in a perilous position. In a 2003 case, a provincial judge faced serious punishment after overturning a local seed pricing law. The local policy, the judge reasoned, was in conflict with a national law on the issue. Local officials, however, considered the decision mutinous.

Despite its technical lack of authority, China’s Supreme People’s Court has started to take a leading role in interpreting general legislation, particularly where business interests are concerned. The court is filling a need left by vague legislation and the NPCs inability to take on the duties of clarifying and interpreting the laws they have passed. The Supreme People’s Court has been issuing interpretation, rules and regulations that are followed in courts throughout the nation. Randall Peeremboom recently discussed the drawbacks of the arrangement in an article included in a recent publication released by The Foundation for Law , Justice and Society. The authority of the SPC is unclear, and in some instances the court has gone so far as to act like a legislative body.

The difficulties in interpreting constitutional language have many in China calling for some manner of constitutional review body. Some argue in favor of creating a committee within the NPC or a court designated to deciding constitutional issues. The SPC itself, without the authority to interpret the constitution, lacks the authority to create a body capable of constitutional review and it doesn’t seem likely the NPC will take meaningful action anytime soon. In the meantime, the real impact of Hu’s “scientific outlook on development” will remain somewhat of a mystery.

Posted 7:23 AM by Lauren Hilgers [link]

Comments:

I trust that I'm not alone in finding these observations extremely interesting. I suppose one of the questions raised is whether the Chinese judiciary will simply start exercising some of the interpretive power (and claiming the authority to do so) because it would serve the interests of the Chinese government itself. If the Party apparatus doesn't have the time to interpret the Constitution, then one would expect courts to take on that responsibility. This, of course, is altogether different from a claim of "ultimate authority" to interpret the constitution. One might imagine a model like our own dormant commerce clause, where the Court interprets legislation against the institutional possibility of a legislative override should Congress disagree with the Court's interpretation of what the Commerce Clause requires.

One would also like to know more about the people who are becoming judges these days. Are they likely to assert themselves and the prerogatives of their institutions?

# posted by

Sandy Levinson : 10:44 PM

Perhaps I'm out of date, but it was my understanding that China's government was a self-perpetuating oligarchy, with the trappings of a constitutional democracy overlaid upon it for purely propaganda purposes. Is this constitution you speak of actually being enforced? By which I mean, if it says "X", and the Communist party wants "Y", does "Y" happen?

Granted, that's a test our constitution often fails...

# posted by

Brett : 10:16 PM

Never let your sense of morals prevent you from doing what is right.
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# posted by

Unknown : 5:35 PM