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Encourage public views of laws
Zong HeChina Daily  Updated: 2005-08-18 05:52

The ongoing drafting of the Property Law is helping introduce transparency into China's policy-making process, experts say.

The draft of the Property Law, which has been discussed by the country's top legislature three times, has been published in full by major media to solicit public opinion after widely diverging views prompted law-makers to postpone its fourth review.

Another 11 laws have been made public in complete draft form to elicit opinion before finally being endorsed since 1949, but none attracted so much attention.

The popularity of the Internet, which makes it very easy for citizens to express their views, and the nature of the law, which directly concerns almost everyone's interests, have certainly contributed.

It seems the law-making process is becoming more transparent and participatory in China.

Public hearings, rarely heard of just a decade ago, are increasingly becoming routine procedures in many places when local rules are drawn up.

"Making public the draft law to receive public reviews should be a basic requirement for the rule of law, a practice that should become regular," Cai Dingjian, a professor of law at China University of Political Science and Law, told Caijing magazine.

The transparency of legislation is not only a technical matter but also an effective way to curb corruption.

"Any law is a kind of trade-off between interest groups," Wang Xixin, a law expert from Peking University, told Caijing. "Law-making, in essence, is a redistribution of power and interests."

Although the National People's Congress (NPC) is the top law-making body its Standing Committee shoulders the role when the congress is in recess, laws are usually drafted by relevant government departments first and then submitted to the NPC for review.

Such a process leaves a lot of room for concerned departments to put their own parochial interests first when writing a draft law, maximizing their power while shirking their responsibilities.

The postal law, first enacted in 1987, is currently subject to revision by the postal authority.

Although in its sixth draft, the postal law amendment is still moving slowly, with many non-postal service providers accusing the authority of favouritism towards the postal system.

The conflict of interests between non-postal service providers, such as express delivery and logistics companies, and the postal system is clearly affecting the law revision process.

Under the current legislation mechanism, departmental interests are hard, if not impossible, to remove from legislation. The key to minimizing their adverse impact is making the policy process as open as possible.

A transparent and participatory legislation process could curtail the practice of departmental bias, Liu Wujun, a researcher at the Institute of Judicial Studies, a Ministry of Justice affiliated think tank, wrote in Worker's Daily. "And a law-making process that takes into consideration public views could raise the public's confidence in the rule of law."

Making the law-making process open would allow any parties whose interests are likely to be affected by the pending law to voice their opinions, presenting each party with an equal platform to advance or protect its interests.

A legislation mechanism that encourages public participation will make laws more acceptable to citizens, thus making them more easily executable and less controversial.

There are many examples of laws that, due to lack of wide public endorsement, are being challenged as they are implemented.

Many cities' ban on fireworks is a case in point. These local rules, made behind closed doors and lacking wide public backing, have not been followed properly by residents.

Local governments usually devote considerable manpower to enforcing the ban during some key festivals, for which the setting off of fireworks is traditionally essential. Even so, their efforts are largely in vain, wasting huge amounts of resources and showing up the law's lack of authority.

The public's blatant disregard for the rules has finally prompted many cities to revise or even scrap the much-resented regulations.

"Legislation openness and public participation could make laws more easily accepted by the public, thus reducing their application costs," Cheng Tao, a law expert at the Shanghai Academy of Social Sciences, told Shanghai-based Xinmin Weekly.

He suggests legislation openness include, among other things, public hearings, field investigations and even disclosure of lawmakers' biographical information.

Openness and transparency in legislation, however, is not a mandatory requirement, according to the country's Legislation Law.

That is why some policy-makers often give the idea of openness a lukewarm reception.

The legislature's decision to dabble in transparency is more a formality than a substantial change. In addition, the absence of an open legal system has retarded the growth of public participation.

When the amended draft of the land management law was published in 1998 to seek public input, only 611 proposals were received from the entire country, far less than expected.

Cai Dingjian attributes the public's lack of enthusiasm for participation in the legislative process to the absence of organizations representing their interests. There must be a channel enabling disparate groups' voices to be heard.

But Cai hopes interest in the Property Law will lead to greater public participation. By August 10, the NPC had received 10,032 proposals related to the draft.

(China Daily 08/18/2005 page4)

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