Legal Harmonization: A Prerequisite for Consistency in Law and Governance, By Christophe Bahuet, Country Director

12 Apr 2012

By Christophe Bahuet, Country Director
International Workshop on Comparative Analysis on Systems and Mechanisms to Ensure Legalization Harmonization at Different Levels, Huangshan

22-24 March 2012

Distinguished guests, 
ladies and gentlemen,

On behalf of UNDP China, I would like to recognize the great wealth of knowledge and expertise that we have among us here today from the field of law and governance. It is indeed a privilege to be among you, and I am delighted to be able to deliver my remarks at this International Workshop on Comparative Analysis on Systems and Mechanisms to Ensure Legislation Harmonization at Different Levels.

This seminar is part of UNDPs work to strengthen governance and the rule of law in China, and forms an important area of cooperation in our partnership with the National People’s Congress under the joint “Governance for Equitable Development” project. This project is supported by the European Union in China and implemented with CICETE, and I would like to convey UNDPs sincere appreciation to our partners, who have organized this event, and the Huangshan provincial authorities for their strong commitment to hosting it.

Supporting the strengthening of governance and the rule of law is an essential part of the work of UNDP in China, and we remain fully committed to working towards this objective with our Chinese counterparts. In this context, we regard the issue of legal harmonization as an important one to address. Legal harmonization is a prerequisite for the cohesion of a normative framework, and contributes to providing certainty and predictability for both legal practitioners and citizens. It remains, however, a complex and challenging undertaking given the multiplicity of actors, levels and procedures that needs to be coordinated.

The reform processes undertaken in China has resulted in the development of a comprehensive domestic legal and normative framework. The National People’s Congress and local people’s congresses have passed 240 laws over the last legislatures. 706 administrative regulations and over 8,600 local regulations have also been passed. During this process, the issue of conflicting norms and the need to ensure normative consistency and codification has gained importance. As the White Paper launched in October last year points out, significant work was required to ensure that new and existing local laws are consistent with national laws. As an example, 31 percent of the 142 local legislations introduced in Shanghai have been found to contravene national laws.

Legal harmonization requires an effective review process – one that can identify and prevent conflicting norms from being passed. The National People’s Congress and UNDP have been supporting the creation of a standard legislative filing and review system in all 31 of China’s provinces, as a means of improving law harmonization. Prior to approving local laws, new procedures have been introduced to submit draft legislation for filing and review. Last year also saw post-legislative evaluations carried out on two laws: The Law on Science and Technology Progress and The Agricultural Mechanic Promotion Law. Collective reviews were made with inputs from a consultative group set up within the National People’s Congress, consisting of experts from over 10 government organizations, and public opinion was sought through official websites.

In addition to this, legal harmonization requires the effective handling of disputes, including constitutional disputes. This requires the adoption of specific procedures with clearly defined institutional responsibilities at the promulgating organ and, if needed, above and beyond this organ. Meanwhile, legal harmonization also requires that these procedures be used and applied, short of which constitutional protection and legal harmonization would remain nothing more than legal theory.

At different stages of its reform process, China has been confronted with these issues and much debate has taken place involving many central and local, legislative (National People’s Congress) and judicial (courts) institutions. China has also gained experience, and learnt from pilot experiments. The work done by the National People’s Congress and UNDP has demonstrated the importance and the impact of a comprehensive filing and review process. Crucially, this pilot work has underlined the importance of focusing on laws and regulations that violate the constitution and higher laws, especially when they infringe upon the rights of citizens. Nevertheless, an effective review must overcome departmental interests and local protectionism. And, as it has also been made clear, the value of an open review process, with a clear public consultation procedure and feedback mechanism, will be essential in this process. Increased public participation and transparency in the legislative filing and review processes can increase public support for the laws, which ultimately leads to better laws that are more likely to be more effectively adhered to, and more easily enforced.

In conclusion, the programme of this seminar will provide us with an opportunity to discuss different approaches to legal harmonization in China and in other countries. We are joined today by senior representatives from the National People’s Congress, State Council and National Agencies, from local people’s congresses, and a number of Chinese and international experts. Together, your expertise, as well as the hands-on experience you have gained, will be important in discussing the issue of legal harmonization, and I hope that this will enable us to formulate concrete recommendations for the further progress of harmonizing China’s laws.

Thank you very much.