Sunday, August 29, 2010

From Theory to Practice: Scientific Development (科学发展观) As Applied Within China

Recently I have been exploring the development of the fundamental principle of scientific development (科学发展观) as a constitutional and normative concept within Chinese law and political organization.  The initial consideration focused on the nature of the concept.  "The concept of Scientific Development (科学发展观) as both constitutional doctrine and leadership principle of Chinese Communist Party doctrine continues to play a foundational role in the emergence of Chinese Party-State meta constitutionalism.  The concept is particularly interesting both as an articulation of "higher law" that informs both the approach to the leadership (领导) role of the Chinese Communist Party under the Constitution and the substantive principles under which the state apparatus (the National People's Congress system) operates."  Larry Catá Backer,  Studying the "Higher Law" of Scientific Development (科学发展观) in Chinese State-Party Constitutionalism, Law at the End of the Day, July 5, 2010.

For this brief essay we turn to a few bits of summary evidence of the use of the concept in practice. My research assistant, Ma Lian recently provides a review of some applications of the concept within Chinese intellectual and Party circles--at least to the extent that such development is available publicly. 

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Applications of Scientific Development
Ma Lian

Largely when a new ideology was promoted in a high-profile way nationwide in China, it is expected to see a series of actions oriented toward the new ideology following its adoption. The case of the Scientific Development is no exception. Recalling what this new “higher law” advocates, one can find consistent development in the application of the Scientific Development in various aspects of political and economic life. From state legislation to party building and regulation of economic behaviors, Scientific Development has been applied in a top-down approach.

“People first”, as a core principle of Scientific Development, has been reflected in some newly adopted laws that are designed to protect individual’s human rights in China. The first tort law in China and an amendment to the electoral law are examples of acts in applying “people first.” The Tort Law – a key step toward a civil law code

For the first time China now has a tort law that is primarily protecting people’s private rights. Effective on July 1, 2010, The Tort Liability Law of the People’s Republic of China, along with the Property Law, effective in 2007, is believed to be fundamental to the goal of having a civil law code in China.1

Wang Liming, who is one of the drafters of the tort law, believed that the law was a very important step toward having a civil law code. He also said the law was a reflection of the current world trend – people first. People’s rights are superior to property rights.2

The tort law regulates liabilities in environmental pollution, medical malpractice, product defect, and other areas where people’s rights might be harmed. Most importantly, the law is a reflection of the principle of equal rights among people despite China’s special urban-rural disparity. In the past there were cases where victims of traffic accidents and mining accidents were compensated differently because of their urban or rural identity. Urban victims got more compensation than rural victims. The difference of compensation has caused an issue of “equal life but unequal values.” The newly effective tort law at least superficially put an end to the unfairness between rural and urban citizens.3

The tort law also regulates infringement against one’s reputation and privacy. The law is very important in awakening social awareness in protecting every individual’s rights. The adoption of the tort law is also a response to the increasing social conflicts and various social issues arising on a daily basis. In a larger context, the law is an application of what the Scientific Development calls for – put people’s interests and rights first. Nevertheless, the fundamental goal of Scientific Development is supposed to benefit people. Compared with previous ideologies and principles that have been guiding China’s reform in the past 30 years, the Scientific Development is aimed at making adjustment and rectification over what has been proved inadequate in social and human development in the previous 30 years.

Amendment to Electoral Law – addressing China’s dichotomy politically.

At a session of the National People’s Congress in March 2010, an amendment to the electoral law was adopted, which indicates an equal electoral right for both rural and urban citizens in China. The amendment allows a 1:1 ratio in the number of population that each people’s representative represents in rural and urban areas. Previously, the ratio was 8:1 and then 4:1. The newly adopted change to the ratio was according to the Report of the Party’s Congress in 2007 about giving equal electoral rights to all citizens regardless of their rural or urban identities.4

The amendment was made following three principles: “One, guarantee the equal right of all citizens to vote. Electing deputies based on the same population ratio in urban and rural areas reflects equality among people. Two, guarantee the equal right of all localities to participate in the organs of state power. Every administrative area, regardless of the size of its population, should have the same base number of deputies and be able to elect a fixed number of deputies to reflect equality among regions. Three, guarantee an appropriate number of deputies for every ethnic group. Ethnic groups with the smallest populations must also have one deputy in order to reflect equality among ethnic groups.”5

It is noteworthy that China is making progress in respecting and protecting people’s basic rights and starting to address the urban-rural disparity. The amendment to the electoral law at least ensures Chinese rural citizens to have equal electoral rights to that of their urban counterparts.

Regarding actions to implement “people first”, China has also issued a National Human Rights Action Plan (2009-2010) in 2009.6 This is the first plan of its kind since the birth of the People’s Republic. One blogger pointed out that the plan was a positive thing in itself because human rights had been put in quotation marks in various official documents and publications before and the official media depicted human rights as something against China’s political stability.7 The blogger was reasonable in assessing the pace of China’s human rights development, calling for more speedy action because human rights are universally accepted values that should be respected and protected regardless what country it is.

The publication of such a plan indicates that discussions about human rights have become open and acceptable in China.8 Scholars of human rights were also very excited about the development of human rights in China. Li Buyun, director of human rights center in Guangzhou University, said that the Scientific Development which advocates people first will lead the country to respect and protect human rights. He also said that the rights listed in the Report of the 17th Party Congress in 2007, i.e. the right to be informed, the right to express ideas, and the right to participate decision making, etc, were more specified and beyond the rights listed in the State Constitution. Xu Xianming, president of Shandong University, believed that the Report of the 17th Party Congress reestablished China’s human rights framework, listing a broad range of specific human rights covering all aspects of people’s life.9 The two scholars of human rights were confident that the pace of human rights development will be faster in the years to come.

New Rule for Foreign Investment: good or bad news?

The State Council earlier this year issued a View about utilizing foreign investment.10 The View calls for raising the quality of using foreign investment, indicating that the Chinese government is shifting foreign investment toward high-end manufacturing, service, new energy and energy saving industries from traditionally high-pollution and high energy-consumption industries. In addition, the view is directing foreign capital toward China’s under developed Western area.

The View, which listed 20 rules about using foreign investment, implies two things, according to an interpretation by a lawyer.11 One, foreign investment gained national treatment status. From now on, foreign investment will be given national treatment status, the same as what other forms of investment enjoy. The state will not give special treatment to or have restrictions on foreign investment. This implies that China’s opening to the outside has deepened. Two, China has improved its ability to use foreign investment. In a sense, China has become more confident in using foreign capital to its own benefit. Foreign capital, along with other capital, shall be used to serve China’s economic development, including the near term goal of industrial upgrading, which is a clear task set by the Scientific Development – developing in a new way, i.e. innovation, high tech, low pollution, low resource consumption.

Another article believed that the new rule about using foreign investment sent out a signal that China now values more about the quality of foreign investment, not quantity.12 It pointed out that foreign investment has been focusing on manufacturing sector in China over the past 30 years, which has caused high pollution and high resource consumption. Now it’s time to change the situation. The new rule is restricting investment on high-pollution industries but encouraging investment in high-end and resource saving industries. These are all conforming to the principle of Scientific Development.

Reporting Officials’ Information pertaining to …

As a widely called for measure against corruption, the latest version of a property reporting rule was unveiled recently. The new rule requires officials of mid level and above to report their personal information with regards to income, spouse and non-adult children’s information, including their marriage status, residence, income and properties. 13

Regarding this new rule, critical opinions are overwhelming. Bloggers have voiced their strong doubt and questions about its real effect. Without publicizing the report, it is hardly an effective way to curb corruption among officials.14Some say the new rule is applied to officials of a certain level and above, which is not exhaustive. The very basic level, the lowest level officials are not included, but those officials are said to be the most corruptive.15 Others say the reporting rule is not compatible with Chinese culture, in addition to some technical obstacles. 16 Chinese officials traditionally assumed a role of taking care of citizens as parents are taking care of their children. In this type of society, how could “children” demand their “parents” make their income information public? Technically, the income of officials is not clearly defined. Most officials have an official salary, but they also have illegal incomes such as bribery, commissions, etc. The income that comes from what is called a gray area, is not easy to monitor.

A blogger pointed out that the new rule has three defects.17First, it is a rule with no outside checks. It is not a law, but a rule set by the Party itself. This indicates that there is still no consensus on setting up a law about officials reporting properties. Second, most likely, officials will only report their salaries. Other types of income that are called gray and black income will not be reported. Even though this is a very incomplete report, it is still not going to be publicized, which makes it hardly effective. Third, there is no effective and stern punishment. The rule did not break any new ground in term of punishment for those who violate the rule.

Despite numerous critical voices, Ren Jianming, a scholar of anti-corruption, believed that the new rule indicates that the focus of anti-corruption has been transitioning from combating to preventing.18 The new property reporting rule requires that official’s appointment decision should be based on his property reporting. This implies that property reporting will become part of the requirement in selecting and promoting officials. Ren said this new rule shows that China’s official appointment mechanism will become “more scientific.”

Group Decision Making in SOEs

On the heel of the new official property reporting rule, the Party’s Central Office joined the State Council’s Office in issuing a View about decision making in SOEs in mid of July. This View requires that any important decisions, important personnel appointment and replacement, important projects and operation of huge amount of capital (san zhong yi da) must be made through a group of leaders, in a way to avoid power abuse and corruption in this process.19 However, san zhong yi da is not a newly coined term. It first was reported in 1996 at a CCDI meeting aimed at restricting power abuse among top leaders in State-owned enterprises.20 The term was reiterated this time and the fact that it was issued by the two offices meant that the implementation of san zhong yi da has not been very well as the country keeps witnessing huge corruptive cases among SOEs in recent years. Meanwhile, the reissuance of san zhong yi da meant that it will become an institution for preventing and fighting against corruption.21

Scientific Development Corporations: zero

A commentator criticized sharply following the oil leak accident in Dalian that there was no single corporation in China that had Scientific Development.22 Qiu Feng made the comment about the irresponsibility of corporations in terms of protecting environment. Qiu said the key to implementing Scientific Development lies in the fundamental change of the current institution. In his view, two things must be done. First, cut the intimate relations between corporations and governments. Second, government should give up GDPism and take social justice and reducing income gap as its top priority.

A media outlet made a special report about a series of pollution issues following the Dalian oil leak accident, questioning that Scientific Development remains to be a slogan by far as it has been largely ignored by corporations.

When a country like China is making an overall transition from the past 30 years of economictake-off to modernization and middle-income country in the world in the next few decades, Scientific Development seems to have pointed out the direction and set up a goal. However, given the size and gravity of this country, it promises to be a tough job.


ENDNOTES:

1Cheng Yifeng, “An interview with Wang Liming”,

2 Ibid.

3 Tan Hao, et al, “Tort Liability Law fills blanks of rights," Xinhua, 12/29/2009.

4 Zhou Tingyu, et al, “Amendment to Election Law to address urban-­‐rural disparity,” 03/08/2010, Xinhua

5Wang Zhaoguo, “Explanation on drafting amendment to electoral law,”

6 Official Text of the National Human Rights Action Plan, 04/13/2009.

7 人权、行动、计划之感想、联想和遐想

8 Bach, Bill, “Concept and history of national human rights plan PPT”.

9 Tang Bingtao, “Interpreting National Human Rights Action Plan (2009-2010)”

10“View about better utilization of foreign investment” State Council Document No. 9 2010

11 Li Shoushuang, “Interpreting China’s new rule of using foreign investment,"  04/20/2010,
FT Chinese.

12 Qin Fu, "Understanding the new rule about using foreign investment from the perspective of scientific development,"Wenming,

13 “Regulation about officials reporting personal matters”, Xinhua, 07/11/2010

14 “Unpublicized report means no report” blog article by Gao shan hou tu, 07/12/2010

15 Du Zi, “How far is the '23 articles' to property publicity?

16Zhang Ming, “Dilemma between the black and the white."

17 “A tough job” blog on hexun.

18 Xing Shiwei, Expert says anti-­‐corruption transitioning from fighting to prevention, 07/12/2010, Xinjing bao.

19 “View about implementing decision making mechanism in State Owned Enterprises," Xinhua 07/15/2010

20 Gao Fusheng, “Implementation of san zhong yi da needs a set of measures” 07/19/2010.

21 Gao Fusheng, supra.

22Li Yang, “Fenghuang’s exclusive dialogue with Qiu Feng: No single Chinese corporation that has Scientific Development,” 07/18/2010
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This review presents an interesting, and necessarily incomplete picture. It suggests 科学发展观 as protean and under developed, There is a greaty danger of having scientific development become all things ot all people--a cudgel that may be used freely by people but representing nothing more than an instrument for personal or political advantage.  Yet to the extent it can serve as a framework for normative discussion, scientific development might be quite useful.  In this sense, its best use may be more as a means of preventing excess than of directing people to a very specifically visible set of objectives or suggesting a distinct set of normative methods.  Perhaps its most important use, though, may be as a framework through which serious discussion of significant political issues facing the Chinese state may be approached without suggesting disloyalty.  And, indeed, one of the great benefits of the move toward a well developed set of higher law principles--of a maturing set of Party principles--is that through their careful invocation, political discussion may be possible in China.  That this is a political discussion necessarily and firmly limited by the presumptions of these principles should come as no surprise given the founding presumptions of the Chinese state.  Yet, that it does permit an important space for discussion, that both defines the borders and shape the character of that discussion, suggests a dynamism to the evolution of Chinese governance that is usually absent from Western discussion of the Chinese political system.

1 comment:

need books said...

Hello Professor Backer-- long time no see! I saw your blog and it made me wonder whether "scientific development" was a principle with enough substance to it for reformers in China to hang their hats on. Unlike, say, liberty or equality or proportionality, it's hard to say what a principle of "scientific development" might mean until one adds an additional principle like "people first" to the mix. Given how loaded a term "people" can be where a party that is nominally communist rules, scientific development might be the sort of thing that the state can put to benevolent uses one day and pretend that it doesn't exist or that it justifies something rotten the next.