Comparison of Chinese and American Laws

Comparison of Chinese and American Laws Introduction The present American laws and government policies have their basis on the American Declaration of Independence of July 4th 1776. According to Cohen (2009), the contents of the second sentence which emphasize on the equality of all men has been the basis of American legislation ever since. Suffice to say, all American laws have in them the basis of an underlying emphasis on human rights. The importance of the statement of declaration is such that it has become the basis of the political philosophy of American politics and forms the basis through which the Constitution of the United States ought to be interpreted from. On the flipside, China’s legislation and constitution are based on the philosophies of the ruling party in China, the Communist Party of China (CPC). The CPC came into power after defeating the Nationalist government in the mainland after a long protracted civil war in 1949. The Communists effectively took power and enshrined their doctrine into legal mandate that is enshrined in the national constitution of China.

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CHINESE vs. AMERICAN LAWS 2 In addition to the historical bases along which laws and policies continue to be based on, another equally determinant basis has been that of political economy. America is a democratic country that encourages political competition in the form of multiparty politics (Cohen, 2009). In China, the country is effectively a dictatorship that is based on a single party, the CPC. The American ideology of capitalism greatly influences the structuring of laws, especially those to do with the economic sector. The Chinese adherence to communism sees the country approach legislative formulation differently with emphasis on the principles of communism. The 1979 reforms in China resulted in the government taking on a somewhat capitalistic approach in its economic policies; however, subsequent laws are still heavily enshrined in the principles of the CPC (Joseph, 2010).

This research paper looks into the stuck differences that exist between contemporary laws of America and China. The differences in the laws that are being examined are on the effects of legislation on the societies of the two nations and by extension the global implications. The laws are examined on the basis of their spheres of influence in contemporary America and China.

Among the laws that this paper analyzes are those relating to Human Rights and a few others dealing with the labor and the economy social effects. Those affecting Human Rights include matters of gender identity and sexual orientation, women’s rights, social welfare and the issue of health. Others still in the human right sphere are abortion, China’s one child policy, capital punishment, religious freedom, press, and media freedom. The paper also briefly examines the relationship between domestic violence levels and judicial independence. Lastly, the paper embarks on a brief overview on economic and labor laws with emphasis on the possibility of trade unions in China and allegations of child labor usage by Chinese companies.

Human Rights

CHINESE vs. AMERICAN LAWS 3 The need for human rights in nations worldwide is at the center of global issues as outlined by the United Nations (Human Rights Watch, 2012). China and America being at the pinnacle of global leadership stand to be criticized and examined for their laws which regard the basic rights of its citizenry. To this effect, some of the fundamental issues that have been of interest are those of gender identity and sexual orientation, racial and women’s rights, social welfare, and the issue of health (Human Rights Watch, 2012). America has been quite successful in enacting legislations that have to do with the aforementioned rights. The United States in the union recognize the existence of persons with a different sexual orientation and some states have gone as far as legalizing same sex marriages within their jurisdictions.

The enactment of equal employment opportunity laws in the American Congress has seen the number of females involved in corporate America increase significantly. The onset of the American Civil Rights Movement in the 1960s resulted in progressive reduction of the racial disparities that existed in the US for most parts of the twentieth century. The Federal government in Washington has been at the center of trying to minimize social disparities within the American society. Introduction of social welfare programs such as the school feeding programs have been cited as having gone a long way in guaranteeing the right to life for many American children, especially those from disenfranchised background. President Obama’s push for a universal healthcare insurance for all Americans during the initial stages of his first term in office is another legislative push that has been cited for aiming at guaranteeing Americans right to quality healthcare.

China as a nation has been accused of wanton disregard and violation of human rights within its territory (Human Rights Watch, 2012). The communist regime has been noted for being anti-reformist in nature and going to any length to maintain is vice like grip on power at

CHINESE vs. AMERICAN LAWS 4 the cost of the populace’s basic rights and freedoms. However, the regime has gone a long way in trying to shed off its perception for being non-reformist by addressing some pressing human rights issues (Lum & Fischer, 2008). Among some of the laws that Beijing has gone out of its way to enact to enhance human rights has been that of the 1997 decriminalizing of homosexuality. The decriminalization of homosexuality was followed by Beijing striking the practice from its official list of mental disorders in 2001 (Lum & Fischer, 2008). However, homosexual marriage is still illegal in China and reports of harassment are still rife. The regime still discourages open flaunting of homosexual expressions in public. According to the Human Rights Watch (2012) World Report 2011: China, in January of 2010, law enforcement in Beijing forced the Mr. Gay China event to be cancelled and refused to give the organizers of the pageant the reason for the cancellation.

The rights of women in China continue to be violated by impunity with the cases being particularly worse for women in rural China (Human Rights Watch, 2012). One of the reasons mentioned for the continual suffering of women in China is the nature of the country’s marriage laws. Women who undergo domestic violence find it extremely difficult to seek any form of legal redress for their suffering. A nongovernmental civil network of the China Laws Society, the Anti-Domestic Violence Network (ADVN) in 2001 was very vocal in calling on the legislature to amend the Marriage Laws. The ADVN noted that the burden of proof required from women victims of domestic battery makes seeking justice nearly impossible (Human Rights Watch, 2012). With regard to health, persons living with HIV/AIDS in China were previously openly turned away and discriminated in employment. In the month of August 2010, a provincial court in the town of Anhui accepted a lawsuit on job discrimination based on HIV status (Human Rights Watch, 2012). However, in Beijing’s efforts to stop drug use and resulting disease

CHINESE vs. AMERICAN LAWS 5 infections, the government has been accused of gross violations of human rights. The Anti-Drug law of 2008 provides for extrajudicial incarceration of a maximum six years of drug users in drug detention centers (Lum & Fischer, 2008).

Abortion in America In the United States, abortion is legal in all states and many view it as the ultimate form of Human Rights violation as it directly affects the right to life (Cook & Dickens, 2003). The US Supreme Court in 1973 in a landmark ruling in the Roe v. Wade case made the practice legal throughout the nation (Cook & Dickens, 2003). Religious organizations in America and more specifically the evangelical denominations have been vocal in their demands to congress to enact new legislation and amend current ones that support abortion. However, the issue of abortion remains very divisive in the American society as it relates to different interpretations of Human Rights. On one hand, there are those who argue against it based on the fetus’ right to life as their argument is based on the fact that conception begins at fertilization (Cook & Dickens, 2003).

The other side arguing for abortion sees it as a woman’s right and that the state has no business in directing or controlling how a person chooses to engage in their procreation. The Republican Party has been very vocal in its calls for abortion to be banned through a constitutional amendment, while the Democrats have stated their unequivocal support for the Supreme Court decision in their 1973 ruling of the Roe v. Wade case.

China’s One Child Policy If America’s legalization of abortion angered the international community who cited human rights violations, then the Chinese one child policy completely infuriated it (Human Rights Watch, 2012). The Chinese government in an effort to reduce the socio-economic pressures that the population growth was having on the country decided to introduce the policy

CHINESE vs. AMERICAN LAWS 6 in 1978. The law was to come to operation the following year and applied to the whole of China (Joseph, 2010). The government however exempted some people and areas from the new legislation. Persons living in the countryside were allowed to have an extra child while also minority populations in the country were allowed to have an extra kid. However, the law is very strict especially on families residing in the cities. The Chinese have been heavily criticized for this particular law as many argue that the law is retrogressive and amounts to the government infringing on the rights of its citizens to procreate. Beijing, on the other hand, sees it as an effective family planning method that has had positive results in curbing uncontrolled population growth in the country (Cook & Dickens, 2003).

Just like is the case of America, abortion in China is legal and is indeed a basic medical service that is provided free of charge in government health centers (Cook & Dickens, 2003).

This fact has had negative societal impacts in China where the culture emphasizes the importance of males in carrying a family’s progeny and name (Human Rights Watch, 2012). The result of this is that families often prefer to get a male child and expectant women have been known to flock medical centers to have ultrasounds so as to determine the sex of their baby.

Female fetuses have been aborted preferentially as families look for male children. In cases where poor women do not have access to ultrasound machines, there are reported cases of new mothers instructing the mid-wife to smoother the child in case it turns out to be female. Apart from abortions, there have been cases where mothers try to bypass the policy and have more kids. In such cases the government issues stiff penalties that in most cases the accused are not able to pay and thus end up facing further legal persecution.

Capital Punishment

CHINESE vs. AMERICAN LAWS 7 Capital punishment is at the heart of human rights debate and international conventions such as the International Covenant on Civil and Political Rights (ICCPR) which form the basis for the International Bill of Rights. Civilizations have always used the death penalty of the ultimate form of punishment for the most grave of offences so as to deter any would be offenders from repeating the same offence. However, it is in the punishment of murder by execution that brings about the morality question. American Civil Rights champion Dr. Martin Luther King argued that “man’s inhumanity to man is not only perpetrated by those who are bad but also by the vitiating inaction of those who are good” (Perry, 2005, p. 6). Despite several international Outcries over the need to replace capital punishment with other forms of punishment, the US and China still continue with the practice. In America, the Federal government has not really banned the act but instead has tasked the execution of the punishment to States. There are those states that have banned it such as Michigan, while states like Texas still continue to hand out capital punishment especially in cases where the accused person is accused of first degree murder (Perry, 2005).

States that are in support of capital punishment state that they have made reforms to the execution of persons such that the methods used at present are very humane in nature (Osofsky, Bandura & Zimbardo, 2005). Up until the mid of the twentieth century, states used to have a variety of methods of executing capital punishment. The methods included hanging, poisonous gas chamber, lethal injections, and electrocution. Despite the fact that mundane acts such as hanging have largely been abandoned in favor of lethal injections and electrocution, the ‘humane’ nature of these methods have been brought into question. Experts still argue that although present methods appear humane, there is no way of quantifying the amount of pain that a prisoner undergoing lethal injection experiences (Osofsky, Bandura & Zimbardo, 2005). The

CHINESE vs. AMERICAN LAWS 8 concoction of drugs that are administered include a component that make the individual numb and hence cannot physically react to the pain that they experience as vital body organs start to shut down. Another argument raised is the fact that once a person is executed, new technological developments in future evidence analysis that might exonerate an inmate becomes pointless. The states that permit capital punishment, however, counter this argument by stating that execution is normally delayed until such a time that the inmate has exhausted all possible avenues of the appeals process and other means such as Governor or Presidential pardon (Osofsky, Bandura & Zimbardo, 2005).

Unlike in America where execution is based on capital offences such as murder, the Chinese laws provide for execution of a host of other crimes that the ruling CPC considers warrants the death penalty (Joseph, 2010). The result is that the highest numbers of executions occur in China (Hong, 2008). In fact the Chinese execute over half the number of persons who are executed annually worldwide. In addition to murder, the Chinese law contains over sixty crimes that are punishable by execution (Hood, 2009). Among the crimes that attract death penalty in China include white collar crimes such as tax evasion, corporate espionage and falsification of financial records for money laundering purposes (Human Rights Watch, 2012).

Other crimes include drug trafficking, kidnappings and abductions, robbery with violence, rape, and treason.

The crime of treason is defined a bit differently in China; the CPC considers any form of dissidence against the communist system of governance as amounting to a crime against the state (Joseph, 2010). Political activists are also considered as persons committing treason and the punishment is usually detention without trial and in cases of repeat offenders who do not become ‘reformed’ after detention, death penalty is the ultimate punishment. In 2007 the government

CHINESE vs. AMERICAN LAWS 9 introduced amendments in execution laws that provided for appeals for sentences netted out at a high court to the Supreme Court. The numbers of executions dropped but were still high enough to be the leading globally (Hong, 2008).

During the 1990s, the European Union (EU) held a series of high profile meetings and conventions in an effort to convince China to loosen up on the death penalty (Hood, 2009). The argument of the EU was that for China to become a developed country, they ought to observe international protocols such as the International human rights convention and abolish the punishment. The Chinese countered that without the practice the crime rate among its large populace would spiral out of control and hence there was a need for a strong deterrent to crime (Perry, 2005). Beijing further countered that the Americans and Japanese being developed nations were still executing the punishment (Hood, 2009). They further quoted that the tit-for-tat approach in dealing with murder was part of Chinese culture and that the punishment had overwhelming public support of above 95%. As a crime deterrent, the Chinese explained that the increased application of the punishment had resulted in significant drops in grave crimes in the country. The Chinese, however, were sensational in their lack of provision of any figures or statistics to support their claim of lower crime rates (Hong, 2008).

Religious Freedom The Chinese constitution in Article 36 provides for the rights of religious beliefs to all its citizens, although the ruling CPC officially identifies itself as atheist (Bhattacharji, 2008). The constitution also bans any discrimination on the basis of religion and forbids any forceful religious beliefs being subjected to the citizenry by individuals, public organizations and state organs. The state only recognizes a limited number of religions and the state oversees all of them via the State Administration for Religious Affairs (SARA). The recognized religions are

CHINESE vs. AMERICAN LAWS 10 Catholicism, Taoism, Buddhism, Protestantism and Islam. The practice of any other religion apart from what SARA supervises is illegal and punishable before law. Any other religious groupings that operate underground, such as the Falun Gong which have large followings are labeled by the government as being cults (Human Rights Watch, 2012).

The SARA has been accused of exploiting legal loopholes such as those that provide it with powers to regulate matters of religion to perpetrate violations in religious freedoms (Branigan, 2011). Any groups that the CCP considers to be under strong foreign control are denied approval. The Roman Catholic Church, for instance, is not legal in China as the government considers allegiance to the Vatican as unacceptable; instead the version of Catholicism in China has leadership that is purely Chinese (Branigan, 2011). The government has repeatedly refused to restore diplomatic ties with the Vatican due to the Pope’s insistence that the Vatican appoint all Bishops. However, over the past few decades, the communists have somewhat eased their previous vice like grip on matters of religion (Human Rights Watch, 2012). In 2005, a survey whose results appeared in a newspaper run by the state showed that 31.4% of adult Chinese identify themselves as being religious. What still prevents the government from completely easing on religious freedom is the association of religion with the clamor for political liberation. The Beijing regime is weary of Buddhist in Tibet who aligns themselves with the Dalai Lama and the Muslims of the autonomous Xinjiang Uighur region (VOA Editorials, 2012).

Press Freedoms The freedom of speech and press freedoms in America are based on the US Constitution’s First Amendment which states that “congress shall make no law…abridging the freedom of speech or that of the press” (Cohen, 2009, p. 2). The implication of this is that all

CHINESE vs. AMERICAN LAWS 11 American media laws lay emphasis on press freedom and the right of individuals to free speech.

During the enactment of these media laws, the government and other state agencies are required by law to be open in their operations. Government is required to inform the public on all its undertakings that do not threaten national security. Citizens are legally empowered to inquire about the status, progress and operation of activities such as financial and humanitarian aid to foreign countries. However, this freedom has other exceptions where it restricts information. In instances where the freedom leads to character defamation or exposes the public and children in particular to obscene and pornographic materials, the First Amendment does not apply (Cohen, 2009).

The press is among the most tightly regulated sectors in China (Woo, 2010). The control of the media by the government is based on the need of the CPC to control the kind of information that reaches the public. The International Federation of Journalists (IFJ) notes that the control of information begins from the collection point up to the point of publication or Broadcast (Woo, 2010). Press briefings or activities of government see intelligence officials strictly scrutinize the press and control the activities as much as possible so as to make sure that the information that the press leaves with is only that which the government intends to reveal.

Before publishing, editors are required by the government to send their reports for scrutiny by officials before the information can be approved to the public (Human Rights Watch, 2012).

The government strictly controls the internet so as to limit the exposure of the populace to unfiltered reports (Joseph, 2010). Any journalist violating the state’s guidelines faces harsh legal repercussions. Beijing has not been amused by the international community interfering with its internal matters especially with regard to dissident journalists who have been imprisoned for breaking regulations. The government was not particularly amused by the Nobel Committee’s

CHINESE vs. AMERICAN LAWS 12 decision to award an incarcerated writer, Liu Xiaobo, the 2010 Nobel peace prize (Branigan, 2011). Social media sites such as Facebook and twitter and the search engine Google are all not accessible in China and in cases where they are, the content is heavily regulated to fit with government restrictions. During the 2008 Olympic Games, the government was under pressure to open up the cyber space for the visitors; however, immediately the games ended, the state reverted to its control.

Judicial Freedom The American government is divided into three arms, namely: The executive, legislature and judiciary. The American constitution provides for all these government sections to exist independent of each other in the performance of their functions. The case of the Judiciary is such that the Supreme Court of America is at the pinnacle and it is headed by the Chief Justice and other lower federal courts (Cohen, 2009). The Supreme Court conducts its duties with complete autonomy from the executive. The appointment of Supreme Court judges is done by the president who then forwards the names for approval in the Senate. This verification of the judges ensures that their appointment shreds any feelings of patronage to an individual in carrying out their activities. In addition to eliminating patronage, this kind of appointment inspires public confidence in the judicial process (Cohen, 2009). The judgments that the American courts make are based on the countries universally accepted constitution. The American judiciary is also more responsive to the plight of women in terms of being firm in dealing with domestic violence (Goodrich & Walker, 2010). The reason for this is because unlike the Chinese marriage laws which have very stringent requirements for the burden of proof, the American laws pertaining domestic violence are much easier to prove in court.

CHINESE vs. AMERICAN LAWS 13 The Chinese government is also divided into three arms: The executive, the legislature and the judiciary. Unlike the States, the Chinese government is run by a single party communist regime. The nature of the political system contributes to many questioning the level of institutional independence in the country (Joseph, 2010). Since it is the CPC that essentially fills up all seats in parliament, the result is that though in principle the Chinese constitution provides for institutional independence and separation, the reality is that all institutions operate under the firm hand of the CPC (Human Rights Watch, 2012). This de facto control of the judiciary by the communists have seen judgments that are friendly and in accordance to the principles of the CPC handed out with government detractors particularly singled out for harsh punishment (Joseph, 2010). The result of this is that the unwritten rule in China is to either conform to the system of have difficulties with government, from sycophantic police who are only too happy to crack down on any opposition towards the government to a judiciary that is ever too willing to sentence rather harshly.

Economic and Labor Laws The American economic and labor laws have been quite flexible in terms of allowing foreign nationals to work in its industries (Hansen, 2006). The Chinese have also been exploring the possibility of allowing migrant workers, especially the skilled labor force to enter China and work (Karindi, 2008). Challenges facing the Chinese industries such as widespread environmental pollution have seen China amend its laws relating to international migration so as to deal with the challenges (Liu, 2009). European and Japanese environmental experts have been pivotal in Chinese efforts of dealing with pollution, especially in the lead up to the Beijing Olympics. Besides conservation, further amendments in immigration law will make China attractive as an investment destination (Jijiao, 2010).

CHINESE vs. AMERICAN LAWS 14 However, for China to reap additional benefits of foreign investment, scholars argue that Beijing has to consider regulating its massive workforce. Cases are rampant of factories operating as sweat shops which exploit young kids in their production activities. These cases of the use of child labor in Chinese industries have led to many international organizations criticizing Beijing (Hansen, 2006). The International Labor Organization (ILO) has been among the most vocal in making these calls for a paradigm change in Chinese economic policies and labor laws. ILO insists that it is high time Beijing allows for the formation of trade unions that will negotiate for better terms for the laborers and improve working conditions (Chen, 2011).

Scholars, however, are of the opinion that that is increasingly unlikely due to the government strong views against any mass associations in the country. Beijing has genuine fears of the possibility of powerful trade unions emerging that may be able to challenge the status quo (Karindi, 2008).

Conclusion America and China are the top global economic powerhouses but the path to their economic dominance could not be much more contrasting. While both have constitutions that clearly provide for the separation of powers among the various arms of government, the political economy of both nations has resulted to very different national leaderships. While America embraces multiparty democracy, the single party of the Communists in China rules more or less as a dictatorship. The result of these different leadership methods have seen the countries’ laws differ greatly. The differences are observed in human rights issues. Whereas America’s track record of human rights is quite satisfactory, that of China is at best wanting. In areas where America contravenes international human rights conventions such as in abortion and capital punishment, the country at least has lengthy procedures that limit the frequency of occurrence of

CHINESE vs. AMERICAN LAWS 15 the same. On the other hand, China’s policies are more extreme and extend to other rights’ violations such as those of religion, press and judicial freedom. Although recently China has revised their economic laws dealing with migration to cater for new challenges, more still has to be done in relation to formation of trade unions and clamping down on child labor.

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