LJD

1. LJD LAW, JUSTICE and Development week 2011INNOVATION AND EMPOWERMENTFOR DEVELOPMENTNovember 14-17, 2011 Washington DC LAW JUSTICE and DEVELOPMENT

2. Law and Development in China—Opportunities and Challenges PANEL 1: LAW, JUSTICE AND DEVELOPMENT IN CHINA’S TRANSFORMATION Natalie Lichtenstein, Commentator November 16, 2011 LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

3. Historical Influences • DYNASTIC TIMES • Law had no divine origin; moral principles higher than law • Law focused on punishment handed down from the state in areas of administration and criminal behavior, not a mechanism for realization of individual rights • LATE QING DYNASTY, EARLY REPUBLIC • Western-influenced legal reforms, motivated in part to remove extraterritoriality • Continental system, with civil code migrated through Japan • Soviet influences and model (both political factions) LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

4. Legal Development and Economic Reform "Reform policies cannot be effective in the absence of a system which translates them into workable rules and makes sure they are complied with. Such a system assumes that: a) there is a set of rules which are known in advance, b) such rules are actually in force, c) mechanisms exist to ensure the proper application of the rules and to allow for departure from them as needed according to established procedures, d) conflicts in the application of the rules can be resolved through binding decisions of an independent judicial or arbitral body and e) there are known procedures for amending the rules when they no longer serve their purpose." • Ibrahim F. I. Shihata, The World Bank and "Governance" Issues in Its Borrowing Members (1991) LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

5. Limitations on Government Action Magna Carta (1215): • “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we [the King] proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” NPC Standing Committee (2011): • “All state organs, armed forces, political parties, mass organizations, enterprises and institutions must abide by [the Constitution and laws]. No organization or individual has any privileges that transcend them, and all violations of the Constitution and laws must be prosecuted.” • “State administrative organs must perform their duties in strict compliance with statutory authority and procedures, and accelerate the development of law-based government. State judicial and procuratorial organs must exercise their judicial and procuratorial powers in an independent and just manner, and uphold social equity and justice. “ LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

6. China’s Legal Reform and Opening Up: Using Comparative Experience and Models NPC Standing Committee (2011): • "We have also attached importance to learning from foreign legislative experience in order to absorb elements that are beneficial and useful for us; but we never blindly follow or imitate others. Different countries have different systems of laws, and we do not copy the systems of laws of certain Western countries when enacting the socialist system of laws with Chinese characteristics. We do not enact laws that exist in foreign systems of laws but that do not suit China' s conditions and realities." LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

7. Legal Technical Assistance for China: Donor Views of Success Factors • ADB: • Genuine national commitment and support as sine qua non for success • Strategic selection in line with counterpart reform plans • Readiness for reform • Flexibility in design to respond to unexpected events • GTZ: • Legislation consolidates development (doesn’t initiate) • Chinese legislator is a strong, autonomous decision-maker in respect of advice provided • Purely technical advice is generally openly accepted • World Bank: • Country ownership is key • Knowledge of the country's legal framework essential • Attention to what is relevant and attainable in country context • Flexible design with long implementation periods to support long-term reforms LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

8. Future Legal Development NPC Standing Committee (2011): • "In areas where we have little practical experience but in reality laws are needed to impose standards, we have made laws more general in order to provide standards and guarantees for guiding practice while leaving room to deepen reforms and to revise and supplement the laws when the conditions are ripe. For new situations and problems that we have encountered during reform and opening up, and for which the conditions do not now exist for standardizing them by means of law, we have formulated administrative regulations and local statutes on the basis of our statutory limits of authority. After implementing them on a trial basis, we will enact laws when we have sufficient experience and ripe conditions.“ LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT

9. Thank you! LJD WEEK 2011 INNOVATION AND EMPOWERMENT FOR DEVELOPMENT