Foreign Policy Magazine List: Top Ten Worst Chinese Laws

FP has put together their list of the top-10 worst laws on the books in the PRC.  Making the cut were Article 105 of the Criminal Law Code (subversion) and the Law on the Supervision by Standing Committees of the People’s Congress at All Levels, Article 3 (upholding the leadership of the CCP).

The full list and commentary can be found here.  Tell us what you think: Fair or unfair? Which laws should be scrapped, amended, or updated? Did FP interpret the laws correctly? Any on the books that didn’t make this list?

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Richard Burger is the author of Behind the Red Door: Sex in China, an exploration of China's sexual revolution and its clash with traditional Chinese values.

The Discussion: 26 Comments

What is a “bad” law? One that doesn’t fit the author’s preconceived notions; one that is badly written; or one that is poorly enforced?

Skip the first, simply because what a German believes to be a “bad” law won’t match what a New Zealander believes. The second probably requires more legal expertise than most of us have, so let’s use the third definition.

Laws? I doubt we could wade through 1% of the thousands of laws, so let’s further narrow the field to the Constitution (http://tinyurl.com/PRC-Constitution).

Here’s my list of poorly enforced laws (selected phrases) —

Article 3: “The National People’s Congress and the local people’s congresses at different levels are instituted through democratic election.”
Article 4: “All nationalities in the People’s Republic of China are equal.”
Article 5: “All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law.”
Article 9: “The state ensures the rational use of natural resources and protects rare animals and plants. The appropriation or damage of natural resources by any organization or individual by whatever means is prohibited.”
Article 14: “The state practises strict economy and combats waste.”
Article 15: “The state . . . ensures the proportionate and co-ordinated growth of the national economy through overall balancing by economic planning and the supplementary role of regulation by the market.”
Article 24: “The state advocates the civic virtues of love for the motherland, for the people, for labour, for science and for socialism; it educates the people in patriotism, collectivism, internationalism and communism and in dialectical and historical materialism; it combats the decadent ideas of capitalism and feudalism and other decadent ideas.”
Article 25: “The state protects and improves the living environment and the ecological environment, and prevents and controls pollution and other public hazards.”

and,

CHAPTER II. THE FUNDAMENTAL RIGHTS AND DUTIES OF CITIZENS.

(All of it.)

August 19, 2008 @ 1:15 pm | Comment

Before I read the article, the big one on the top of my head was the Hukou. It seems pretty obvious to me that the purpose of the hukou is to keep the cities wealthy, and force the rural areas to stay poor. No respectable nation should be able to treat its citizens as foreigners in their own country.

August 19, 2008 @ 1:46 pm | Comment

All countries have laws that can interpreted to the extreme and be applied beyond their original intent. I’m pretty sure a similar list could be made with 10 US or EU laws.

August 19, 2008 @ 3:37 pm | Comment

“I’m pretty sure a similar list could be made with 10 US or EU laws.”

Maybe. But the article in question is about China’s laws. It doesn’t make the case that China’s laws are worse than those in other countries.

August 19, 2008 @ 4:19 pm | Comment

laws are to be broken. wahhaha
y cant people just be nice.

August 19, 2008 @ 4:20 pm | Comment

The Anti-Secession Law is not on the list. So it is a good law, I guess.

August 19, 2008 @ 5:13 pm | Comment

American media often describe politicians as “lawmakers”, as if making laws is their raison d’etre and also assuming that ‘good’ laws make for good government. China’s laws may sound good or bad, but it all depends on the enforcement. And that’s a different reality.

August 19, 2008 @ 7:21 pm | Comment

Using good or bad to judage law is questionable, the ultimate question is more likely to be

this law is good/bad for whom?

August 19, 2008 @ 10:55 pm | Comment

Not fair on the property law. It’s not perfect, but it is a huge step forward for China. Other than that it is a very good list, though it does have to be said that the real proof of the quality of a law usually lies in how it is enforced.

August 19, 2008 @ 11:59 pm | Comment

China’s 10 Worst Laws…

Foreign Policy Magazine is out with a fascinating and very well done list of China’s 10 worst laws (damn, why didn’t I think of that). (h/t to Jeremiah over at Peking Duck) I certainly agree with most of those on the list, but I hardly think it fair …

August 20, 2008 @ 12:01 am | Trackback

@Serve the people – Yeah, the Anti-secession law is the one which never seemed to make any logical sense to me. Either warfare against Taiwan is legal, in which case there is no need for the law, or it is not legal, in which case what has the Chinese government been doing for the last fifty years? The Taiwanese authorities and China have signed no peace agreement, so military action is just as legal as it was say, in 1954 when Mao opened his bombardment of Jinmen island, or 1958 when PLA jets engaged in dogfights with the ROC airforce – so why the law? The law does not actually force the government’s hand – the decision is still up to them to decide whether “re-unification has failed”.

I’m sure a lot of employers would like to include the new labour law, but I have to say that would be unjustified. The law may (theoretically) grant greater protection to employees than is found in, say, the United States, but there is little in it than would shock people in the EU. All-in-all I think it is a good law, but we still have to wait to see what its real effects are.

August 20, 2008 @ 1:57 am | Comment

The point of so-called Anti-secession Law is somewhat similar to Taiwan Relation Act in that, if certain conditions are met, it is not up to the executive to evaluate the overall situations and choose to respond in a specific way. The law specifically requires the president to act if certain condition are triggered.

August 20, 2008 @ 2:33 am | Comment

@Falen – The TRA does not mandate any specific action in the event of an invasion, check out USC 22, section 3302 C:

“United States response to threats to Taiwan or dangers to United States interests
The President is directed to inform the Congress promptly of any threat to the security or the social or economic system of the people on Taiwan and any danger to the interests of the United States arising therefrom. The President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.”

As for conditions being ‘triggered’ the wording of the law does not actually specify ‘failure’ in a way that would force the government’s hand – it is for the government to decide whether re-unification has ‘failed’. Article 8 reads like this:

“In the event that the “Taiwan independence” secessionist forces should act under any name or by any means to cause the fact of Taiwan’s secession from China, or that major incidents entailing Taiwan’s secession from China should occur, or that possibilities for a peaceful reunification should be completely exhausted, the state shall employ non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity.

The State Council and the Central Military Commission shall decide on and execute the non-peaceful means and other necessary measures as provided for in the preceding paragraph and shall promptly report to the Standing Committee of the National People’s Congress. “

There is no definition of ‘China’ – does it mean the PRC? The ROC? Or something else? What is meant by ‘separation’? What are ‘non-peaceful means’. These terms are not defined anywhere in the law.

Then you look at whether the law actually binds the government into an invasion to retake the island – and it quite clearly does not, as the executive is still free to decide what form these ‘non-peaceful means’ take. They could easily take the form of means that would not normally be considered ‘non-peaceful’. Likewise, since the law also allows the government to take action if ‘major incidents’ ‘entailing Taiwan’s secession’ are occurring (or about to occur), the PRC is still free to invade Taiwan at any time as it is free to decide what events ‘entail’ secession. It is not even a general ‘anti-secession’ law, as it only applies to Taiwan, nor are Hong Kong or Macau bound by it.

August 20, 2008 @ 3:47 am | Comment

The strangest part of the law has to be this part of Article 7:

” The two sides of the Taiwan Straits may consult and negotiate on the following matters:

(1) officially ending the state of hostility between the two sides . . “

But in Article 3 it says this:

“The Taiwan question is one that is left over from China’s civil war of the late 1940s.”

So is China at peace with Taiwan? Or isn’t it? One article says that negotiation may still be necessary to end the “state of hostilities”, but the other part defines the civil war as something which is finished. And if a “state of hostilities” does exist then surely “non-peaceful means” are already allowed – so why is the act necessary?

August 20, 2008 @ 4:02 am | Comment

Laws both have good and bad side. I kind of like the New Property Rights Law, because it means the government can have control of the land for the development of the country.

Probably China can work on a fair compensation measure then.

August 20, 2008 @ 7:24 am | Comment

Bonus: another stupid Asian brains are different because they are collective
rifght here

August 20, 2008 @ 7:52 pm | Comment

right here

August 20, 2008 @ 7:56 pm | Comment

@Michael – Errm . . I think you’ve got the wrong thread, but anyway, the study does actually provide evidence for what it’s saying, and it doesn’t ascribe the bias in facial recognition to neurological differences, but cultural ones.

August 21, 2008 @ 1:56 am | Comment

The Anti-Secession law is just dumb for so many reasons. The biggest of these is that the law is nothing more than grandstanding. 1) Nobody has ever doubted that if China has the military means to invade Taiwan successfully, it will do so if it feels its goal of unification will not be realised. 2) Everybody knows that when governments are not capable of acting militarily, they won’t. The law actually does nothing to change the situation and is really no more than an attempt at dissuasion, and in this, the effect of the law is questionable.

Whoever came up with the 10 laws in question chose them for their actual effects. Since the Anti-Secession Law changes nothing in itself, I can understand why it was not included.

August 21, 2008 @ 1:17 pm | Comment

@Michael – Errm . . I think you’ve got the wrong thread, but anyway, the study does actually provide evidence for what it’s saying, and it doesn’t ascribe the bias in facial recognition to neurological differences, but cultural ones.

It’s a followup to the stuff by David Brooks. Same problem. The issue is not the findings but the fact that they are ascribed to cultural traits though (1) it is debateable whether collectivist and individualist are valid categories and (2) no chain of causation connects the cultural explanation to the evidence.

August 21, 2008 @ 3:40 pm | Comment

@Michael Turton – But it seems logical to presume that if the difference is not neurological (or not due to what you called ‘Asian brains’) then it must be cultural. I can’t really think of a third option other than environmental factors – which do not seem likely.

I have to say, though, that people like Brooks are not the only ones who carry on like this. How many times have I read a CCP-apologist describe Chinese politics as ‘consensual’? Or that westerners are ‘confrontational’ in their way of doing things?

August 21, 2008 @ 8:06 pm | Comment

Agreed on Anti-Secession Law. One of the worst bad-faith pieces of legislation I have ever comes across. Plus the amount of nationalist fervour it whipped up means a future administration may find it difficult to repeal or ignore it even if it wanted to.

That said the current “top 10″ has been very well drawn-up. I might have swapped the ASL for the trade union regs.

August 21, 2008 @ 10:54 pm | Comment

Now I think about it, Dan is right on the Property Law. Just because it doesn’t go far enough doesn’t mean it is a bad law.

August 21, 2008 @ 10:56 pm | Comment

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August 25, 2008 @ 4:42 pm | Pingback

The Anti-Secession law is a classic case of a law being bad because it is unenforceable.

First, build an amphibious capability.
Next, establish air superiority. Don’t forget the US 7th Fleet.
Third, consider the economic, political, diplomatic and, yes, military response from your trading partners and investors.
Finally, give it up as a bad idea and get used to having never had the least degree of control over a single inch of Taiwan.

August 25, 2008 @ 5:41 pm | Comment

It seems to me that most European laws (and punishments) were codified to guarantee both sides of a deal. That’s not apparent here. It just looks like a sort of guide, if you don’t fall foul of it – you might get rich, otherwise you’re an idiot.

August 27, 2008 @ 4:25 am | Comment

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