[Joint House and Senate Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
PROMOTING RULE OF LAW IN CHINA
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 24, 2002
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate House
MAX BAUCUS, Montana, Chairman DOUG BEREUTER, Nebraska, Co-
CARL LEVIN, Michigan Chairman
DIANNE FEINSTEIN, California JIM LEACH, Iowa
BYRON DORGAN, North Dakota DAVID DREIER, California
EVAN BAYH, Indiana FRANK WOLF, Virginia
CHUCK HAGEL, Nebraska JOE PITTS, Pennsylvania
BOB SMITH, New Hampshire SANDER LEVIN, Michigan
SAM BROWNBACK, Kansas MARCY KAPTUR, Ohio
TIM HUTCHINSON, Arkansas SHERROD BROWN, Ohio
JIM DAVIS, Florida
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State
GRANT ALDONAS, Department of Commerce
D. CAMERON FINDLAY, Department of Labor
LORNE CRANER, Department of State
JAMES KELLY, Department of State
Ira Wolf, Staff Director
John Foarde, Deputy Staff Director
(ii)
C O N T E N T S
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Page
STATEMENTS
Opening statement of Ira Wolf, Staff Director, Congressional-
Executive Commission on China.................................. 1
Reinstein, Robert J., Dean, Temple University School of Law...... 2
Yuan, Nancy, Director, Asia Foundation........................... 4
Kapp, Robert, President, U.S.-China Business Council............. 7
Sullivan, William, Director, Executive Education Programs,
Maxwell School of Public Affairs, Syracuse University.......... 10
APPENDIX
Prepared Statements
Yuan, Nancy...................................................... 34
Testimony of Robert J. Reinstein, Dean, Temple University Beasley
School of Law before the Senate Appropriations Committee,
Subcommittee on Foreign Operations............................. 36
Submission for the Record
Article from the China Business Review entitled, ``Hope for
China's Migrant Women Workers,'' submitted by Robert Kapp...... 40
PROMOTING RULE OF LAW IN CHINA
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FRIDAY, MAY 24, 2002
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 10:02
a.m., in room SD-215, Dirksen Senate Office Building, Mr. Ira
Wolf (Staff Director of the Commission) presiding.
Also present: John Foarde, deputy staff director; Susan
Weld, general counsel; Jennifer Goedke, Office of
Representative Kaptur; Matt Tuchow, Office of Representative
Levin; Arlan Fuller, Office of Representative Sherrod Brown;
Holly Vineyard, Department of Commerce; Robert Shepard and
Jorge Perez-Lopez, Department of Labor.
OPENING STATEMENT OF IRA WOLF, STAFF DIRECTOR OF THE COMMISSION
Mr. Wolf. I would like to welcome everyone to the fifth
staff-led roundtable of the Congressional-Executive Commission
on China. I am Ira Wolf, Staff Director. This is John Foarde,
Deputy Staff Director. This is Susan Weld, who is the general
counsel for the Commission, and we are surrounded by staff
members of our commissioners who will participate in the
question period.
Senator Baucus and Congressman Bereuter have instructed us
to hold these roundtables to delve in depth on issues of
concern to the Commission.
Let me just run through a few upcoming events. There will
be a full Commission hearing on June 6, it will be on the WTO
[World Trade Organization] entitled ``Will China Keep Its
Promises? Can It? '' We also have additional roundtables on
June 10 on Tibet and Uighur minorities, June 24 on restrictions
on media freedom in China, and July 8 on village elections. You
can check our Web site at www.cecc.gov for details.
Turning to today's roundtable, human rights cannot exist
and be protected without an effective legal system, without
accountability of government officials, and without
transparency. But an effective legal system does not emerge in
any country spontaneously. It requires commitment by leaders,
by officials and by the citizens in that country.
Outsiders including governments and non-governmental
institutions and organizations [NGOs] can help in training, in
developing an awareness of the importance of the rule of law.
Today we have four individuals with us who themselves, as
well as their institutions, have long experience in this type
of work in China. Robert Reinstein is Dean of Temple University
Law School. Nancy Yuan directs the Asia Foundation in
Washington, DC. Bob Kapp runs the U.S.-China Business Council,
and William Sullivan comes from the Maxwell School at Syracuse
University.
You will each have 10 minutes for your opening statements.
Then we will turn to the staff for questions and discussion. We
try not to engage in straight Q and A, but try to encourage
discussion with us and among you four experts. So, we will
start with Dean Reinstein.
STATEMENT OF ROBERT REINSTEIN, DEAN, TEMPLE UNIVERSITY SCHOOL
OF LAW
Mr. Reinstein. Thanks, Ira. Thanks very much for the
invitation. I will try to be brief. I am programmed to talk for
50 minutes in class, so I will try to summarize.
I thought I would spend this time just telling you what we
have been doing in China and more specifically why we have been
doing it. Really it has been at the request of a variety of
Chinese educational and governmental institutions. We were
originally approached in 1995 by the Ministry of Justice and a
national law school, the China University of Political Science
and Law. They wanted us to consider starting a Masters of Law
Program in Beijing for Chinese lawyers to learn about American
and international law along the lines of a program that we had
already developed in Japan. They said they needed this because
with the development of a market economy in China, they
understood the need to develop a legal system. The route they
wanted to take in developing a legal system was to educate a
core of very highly trained lawyers and government officials
who would learn about the American legal system and
international law and other Western legal systems and adopt
what they thought was appropriate, from that education, and use
that to develop their legal system.
When we started to develop the program, we began to receive
requests from the Supreme People's Court, and a number of
government ministries to send students. We did start our first
class in 1999 with 35 students, that class included 8 judges
who had been sent by the Supreme Judicial Court, they had
actually nominated 18, we only had scholarship funding for 8.
There were six government officials from a variety of
ministries. We also had three minority students, that is non-
Han Chinese, one of whom was a Tibetan lawyer and two of whom
were Muslim attorneys from western China. We admitted three law
professors and the remainder were private lawyers.
The second class that entered in 2000 had a similar
composition. We have now graduated both of those classes as of
this month. All of our classes are taught in English and they
are taught by U.S. and Western law professors. We use the case
method. Originally the curriculum was very heavily business
oriented, although even in the first classes we were teaching
American constitutional law and professional responsibility.
We taught using the case method, both because that's an
excellent way of teaching about legal reasoning but also
because we thought it would be a great way to teach about how
an independent judiciary operates, and the concepts of due
process of law. Our Chinese students actually were pretty
startled when they started reading appellate decisions in which
the government lost the cases, so they were getting that
message.
Last year we broadened the curriculum to include courses
that were less related to business and commerce. One was a
course on labor and employment rights. The second was a course
on criminal procedure and trial advocacy. The students asked us
to teach trial advocacy. They wanted to learn how to try cases
as American lawyers did. We put together a course in which we
taught about American criminal procedure, especially the
protections of the Bill of Rights, and we taught trial advocacy
and the students did a mock trial. Each of the students did a
mock trial, trying an American criminal case based on American
legal principles. In several of those mock trials, by the way,
the juries contained Chinese Government officials, the juries
acquitted on reasonable doubt.
Another feature of the program is to teach legal research,
especially legal research by computer. We're doing that, of
course, so that the students can continue to access legal
materials throughout their career and continue to learn about
what's happening in the United States and in the West.
The expansion of the program occurred I think because of
the success of the Masters Program. We started getting requests
for more and more educational programs. The first request came
from the Supreme Court, they wanted to educate more judges.
They said that the judges who were graduating from the Program
were becoming division chiefs in their respective divisions and
we could only take a fairly small number of judges each year.
They asked us to try to take more judges into the Masters
Program and also construct more short-term training programs
for additional judges.
We did secure additional funding and we formed a
partnership with other institutions which I can maybe get to
later. What we have right now happening is, right now there are
40 judges in Beijing from all over China, who are taking a 3-
month course in legal English that are taught by faculty from
Brigham Young University. When they complete that course, about
10 of them will be admitted into the Masters of Law Program and
about 25 of them will go to New York this summer for a month-
long training program that will be held at NYU's Institute for
Judicial Administration. We expect to do this each year so that
we can reach a larger number of judges in China.
Another request we got from the National People's Congress
[NPC] and the Supreme Court was to form some working groups on
some proposed laws and regulations. We are now working with the
drafters of the new property rights law, in fact three of our
professors are going over next week to work on that. There is a
draft property rights law that is going to be introduced in the
National People's Congress. They are asking for our advice,
really based on how things work in the United States so that
they can learn from that. One of our faculty members is working
with the Supreme Court on a code of judicial ethics and we've
also been asked to work on a draft of a tort law which is going
to be developed next year in the National People's Congress.
We have academic exchanges and joint research projects. A
number of our faculty have been lecturing especially in the
National Judicial College. I'm scheduled to give a lecture on
June 10 on judicial review.
The latest request we got was a couple of months ago from
the State Prosecutor's office. They have asked us to construct
an educational program for the prosecutors, which is just like
the one we have for the judges. They want to send about 10
prosecutors each year into the Masters of Law Program and they
also want to have an intensive education program for about 25
or 30 prosecutors each year along the same lines as for the
judges where it is preceded by a legal English program, and
then we would teach them how American prosecutors try cases and
how the offices of American prosecutors operate. The subjects
they want covered are due process, the rights of defendants in
criminal cases, how to prevent abuses of power by the
prosecutor's office, rules of evidence and how to use the
prosecutor's office to deal with official corruption. We are
hoping to be able to do that. We do not have funding for that
project right now but I think it's an exceptional opportunity
and that we should really try to take advantage of it.
Our present partners in this endeavor, in China our
academic partner is Qinghua University, which has excellent
facilities and a pretty internationalized faculty. The Supreme
Court and the National Judicial College and the State
Administration for Foreign Experts has been very helpful to us.
Our partners here are New York University Law School and
Brigham Young University.
The other project that we are doing, which Adelaide
Ferguson just reminded me of, is that this summer we are having
a group of scholars coming over from China doing some joint
research and producing some papers on WTO and WTO
implementation in China.
We have also benefited from financial support from a lot of
sources. I think this has been a really nice example of a
partnership between government, business, and academia. We have
had corporate support from a number of American and Chinese
companies and foundations and we have also benefited from a
grant that we got from USAID. Thank you very much.
Mr. Wolf. Thank you very much. You have described a wide
breadth of activities and programs--very impressive.
Nancy.
STATEMENT OF NANCY YUAN, DIRECTOR, ASIA FOUNDATION
Ms. Yuan. Thank you. Thank you for inviting me this
morning. We're delighted to present the Asia Foundation's
programs. As many of you know the Asia Foundation has been
present in China with a program since 1979, so we will be
celebrating an anniversary coming up soon.
Our law programs are conducted in the context of an overall
program that focuses on governance, law and economic reform. We
also have programs in United States-China bilateral relations
as well as programs to support the NGO [non-governmental
organization] sector and developing the role of women in
society.
These programs are run from the Beijing office on the
ground. Our staff travel quite extensively, our director for
program development is in Hong Kong because he also runs our
Taiwan program. So it's within this context that we have a
program in China.
The area of legal development is of course not new for the
Asia Foundation. For nearly 50 years we have been working in
legal reform throughout the region and that includes both
technical assistance programs, study programs to bring people
to the United States as well as travel throughout the region to
give them a sense of what kinds of law developments is
occurring in different countries in Asia.
Our approach in China is basically the same as it is in
other countries, to identify the interests that are on the
ground, to try to look at opportunities where there is space
for the kind of program that we would want to do. We are, in
essence, a grantmaking organization.
Our programs have worked effectively both with the Chinese
Government but also with the NGO sector and includes non-
governmental organizations for instance, that run legal aid
programs, university programs to provide training for faculty,
work with the Supreme People's Court, and other provincial
courts and such.
To give you some context for what the Asia Foundation deals
with, when we conduct our programs on the ground. As an
American organization, we have been one of few consistently
working on legal reform for the last 20 years. The other
organization, as you well know, is the Ford Foundation, and
there have been exchanges and programs with universities that
have been going on for quite some time. For instance, the Ford
Foundation has a program called the CLEEC Program which brought
law faculty and lawyers to the United States for a year of
study. On the whole, the community of people who work in the
law development field are, frankly, not American. The larger
amount of resources and activities are conducted by the
Europeans. The European Union has a very large program of
training with the Supreme People's Court, it's probably about
$15 million dollars a year. The Germans have a very large
program of legal assistance, both in technical assistance as
well as judicial training. The Canadians, the British, the
Swedes, the Danes, the Irish, just about everybody else has
fairly significant programs of assistance with resources behind
it.
It's in that context that we participate in two donor
roundtables: One on governance, one on law, about every 6
months, to go over the lay of the land, to talk a little bit
about what it is everyone is doing. The Asia Foundation's
assistance is, in comparison to those organizations, small. We
need to look for a place that we feel we can both make a
difference, do some good work to advance legal reform and
protect rights of citizens in China, but also where we aren't
swallowed up by some larger initiative where the funding base
and the effort level is so high that we are a drop in the
bucket.
Our law program at present focuses on 3 specific areas. The
first area is in the area of administrative law, in an effort
to help define government behavior, in terms of the arbitrary
behavior of government officials under the law, as well as to
protect the rights of citizens. It's under these laws, that as
many of you have read, that citizens have actually sued the
government and some cases they win. I'll talk a little bit
about enforcement later, but it's under these administrative
laws, that citizens are able to do this. In addition, it
governs a variety of different activities that government
officials undertake in their roles.
The Foundation has a project using American legal officials
run by Professor Stanley Lubman, who is a well-known legal
scholar and practitioner. He has assembled a group of
administrative law specialists and China law specialists into
an advisory group working with the Office of Legal Affairs, to
draft an administrative procedures act, which China currently
does not have, but also to look at other draft legislation in
this field.
The other program that we are involved in related to
administrative law is a WTO training project. The project
brings together the top 40 officials from every province in
China, including the autonomous region of Tibet and Inner
Mongolia, to look at administrative law and the implications of
WTO for administrative law. We held a large training session in
Beijing in March, a 6-day training session. The next phase of
the project will be to bring those same officials into the
United States and then to gather in a number of months in Hong
Kong to discuss what it is they have encountered problems with
in terms of the administration of their particular programs in
their provinces.
The second area that the Foundation works in is in legal
aid. We have had a program at the National Legal Aid Center for
a couple of years to fund the case-handling costs in some of
China's poorest provinces. It's basically a matching program
funded by the Star Foundation to provide case handling costs
while the local government covers their operating costs in the
handling of civil cases. We have found this to be a very useful
activity because it gives the legal aid centers an opportunity
to investigate cases, to gather evidence and information, and
to enable them to pursue these cases.
The other area that we work in, in this particular field of
legal aid is a special program that's funded by the Levi
Strauss Foundation with migrant women workers in Guangdong
Province to provide them with legal aid services as well as
legal advice. They come as migrant workers to this area without
any rights because they have left their home province.
Oftentimes they are beholden to their employers for everything:
their living, their healthcare benefits, their childcare
benefits and any other benefits that they do or they don't
have. So the program covers counseling for them through the
Women's Federation.
The third area of programming that the Asia Foundation is
involved in in the law is public legal education. This is done
both through the legal aid centers, through a variety of NGO's,
the program that we have for migrant women workers does a great
deal in this area, but we have also funded the start up of some
television programs. A program called ``Let's Talk About China
Today,'' which I talked about a little bit in my written
statement, is a very popular program that's presented on CCTV,
it's widely watched, it provides both case studies as well as
gives legal advice on a variety of legal problems that citizens
encounter on a regular basis. It has become very popular, it's
been replicated throughout the country. I think for us it's
hard to believe that anyone would watch a program like this
where you learn about the problems of ordinary citizens dealing
with the law, listen to legal experts sitting on a television
show explaining the law as it is under the Chinese system right
now and actually listen to legal advice--it's not quite Perry
Mason--but it's a start in promoting legal awareness in China.
While we feel that these programs are beneficial in and of
themselves in protection of citizens rights, and to try to
develop the legal culture, it is not without problems that we
have programs in these areas. I think in the area of
enforcement, I think, as you all know, the Chinese are not
fully able to enforce laws they have on the books.
The second problem that our people who are on the ground
identify most is the problem with public finance for the legal
system. The salaries of judges are problems for legal officials
at every level in being able to sustain reforms that are
recommended by donors. Once donors are gone, whether or not
public budgets will be made available, is a very big problem.
We still believe it is useful to do these programs. They are
advancing what we believe is a culture of the law. While there
continue to be difficulties, we believe that U.S. Government
and Americans in general should be involved in these
activities. Thank you.
[The prepared statement of Ms. Yuan appears in the
appendix.]
Mr. Wolf. Thanks very much. That is a very impressive set
of programs over the last quarter of a century.
Bob Kapp, please.
STATEMENT OF ROBERT KAPP, PRESIDENT, U.S.-CHINA BUSINESS
COUNCIL
Mr. Kapp. Thanks, Ira. John, could I ask you to send one
copy of the ``Springtime'' piece back? I didn't keep one for
myself. I'll probably refer to it as we go forward.
Let me first of all say thank you for letting me join you.
We in the U.S.-China Business Council feel that this Commission
is a very important thing, and we are pleased to see that in
addition to full hearings, the staff is getting together in
this informal setting, which I think is terrific. I have no
written presentation, and I will keep my remarks very short in
the hopes that we will have more time for dialog. At some
point, I would appreciate being introduced to those members and
staff who are here and as to whom they represent, it would be
very helpful.
Let me say as we start, that in reference to the work of
the Asia Foundation, the new issue of our magazine, The China
Business Review, has a useful article by Zhang Ye, who
represents the Asia Foundation in Beijing, called ``Hope for
China's Migrant Women Workers,'' it elaborates on some of the
things that Nancy was saying. This, I believe, is available by
hyperlink at the China Business Review Web site which is
www.chinabusinessreview.com., and if it isn't you may contact
me and we will make sure that additional copies of the article
are made available.
[The information appears in the appendix.]
I really only have three things to say or four, and they
relate principally to what I've brought over today. I really
strongly commend to you this rather long but important paper,
by Randy Peerenboom, of UCLA. It will be published in the
Michigan International Law Journal this summer and then be part
of a book, and I think this Commission will do well to acquire
when it comes out in September.
Peerenboom is a well-known Chinese legal specialist and
what he's done here is remind us that rule of law has many
forms. He distinguishes between two major types of legal
systems and then subdivides within them in fascinating ways
that make it possible for us, I think, to discuss much more
meaningfully, exactly what it we think we mean when we talk
about the rule of law in China, or what it ought to be.
Everybody loves rule of law, we all love rule of law,
business loves it, human rights loves it, everybody loves it.
Most of us recognize that China is not the United States and
it's not going to be the United States in our lifetimes, and
that the meaning of the term ``rule of law'' in China will
undoubtedly reflect the realities of the PRC [People's Republic
of China]. So, reading this is very important and I urge it
upon you very, very strongly.
I also brought some reprints--I only made six, but I know
the Commission staff will have opportunity to redistribute
them--of a very, very good summation of rule of law work being
undertaken in China by many countries that came out in this
marvelous publication, ``The China Development Brief,'' which
is published in Beijing by a gentleman by the name of Nick
Young. It contains a marvelous whole long section on law- and
education-related work.
I think defining terms is important. I'm not going to
lecture you on how you define them, but I do think in this
Commission, as in all commissions that set out on a
legislatively-mandated path, a very serious definition of terms
in order at the beginning, if your conclusions and
recommendations later are going to have a strong meaning and
strong effect, and that's why I brought those along.
Now just briefly on WTO and commercial law, since we can
take this up in the discussion. This Council and I personally
have never claimed that China's entry into the WTO or the
passage of PNTR [permanent normal trade relations], which was
the major political issue in the Congress 2 years ago, were
themselves going to create a two-party system or let thousands
of prisoners out of jail, or for that matter let anybody out of
jail, or put anybody in jail. What we do believe, and what I
believe very strongly personally, is that the decisions China
has made ever since 1978, and especially with the accession to
WTO, to commit itself to legally binding obligations that
require fundamental transformations of the way in which the
State operates within the economy and thus within in the
society, make very positive auguries for the evolution of a
more economically and socially diversified system in China, and
with it the expansion of the realm of law--as the friends at
the Development Research Center of the State Council have put
it in a paper that they have written, ``a society based on
contracts.''
The logic here is that China is obligated to behave
according to a set of WTO mandated behaviors, which are
essentially the behaviors of an international market economy,
the domestic environment must, if it is to operate without
sanction and if it is to operate to China's greatest benefit
under WTO, continue to develop institutions and practices that
are compatible with these larger international economic and
commercial standards.
I think myself that there is over 20 or more years, a very
substantial flow-on effect, if you want to call it that, from
these legally mandated aspects of China's international and
domestic economic behavior. We can talk about it more later.
The third thing I want to do, if you'll pardon me for
approaching the bench for a moment, your honor, is to show you
some pictures from my recent trip to China, for a reason. Here
are three pictures: One is a landscape, the next is a real
state-owned enterprise [SOE] in model railroad form that sits
on a table in the head office where you can take one picture of
the whole thing. The third is a little village up in the
mountains with a sign about paying taxes. I will now explain
why I showed you these.
The first picture is a picture of the Jianmen Pass, which
separates the province of Sichuan, with 130 million people,
from the province of Sha'anxi to the north, Sha'anxi is the
dry, arid home of Xian, the ancient Tang Dynasty capital, the
gateway to Western China. In this picture of this rock face
2,000 feet high, you can actually see people walking along this
little path, one person wide, cut into the rock cliff--and a
Tang Dynasty poet wrote about this--about how difficult it was
to get to Sichuan, more difficult than ``going to heaven
itself.''
The reason I give you that picture is that it is sort of a
stark reminder of the distance between the capital, if you
will, and the remote provinces. It's a sort of a metaphor for
the challenge that any regime, any government faces in China,
in installing its word and enforcing its word throughout the
society and throughout the land mass of China. We've talked
about this; Nancy has talked about the difficulty of
enforcement at that level. When you really get down to what
it's like to try to create a modern legal system in the
villages of remote provinces where it's a 4-hour walk to the
nearest road, this photo is sort of a reminder.
The state-owned enterprise picture speaks for itself. That
is a classic SOE. Just to look at it is a reminder perhaps, of
days gone by in American East Coast and Midwestern cities, but
it is again a reminder of the magnitude of the social
transformations that China faces as it tries to turn these
behemoths into market-oriented, profitmaking institutions, and
as it tries to deal with the social impact of these
transformations: The layoffs, the lack of social insurance, the
abandonment of the model by which enterprises like that took
care of the worker from literally cradle to grave, and his
parents and his kids and his sisters and his cousins and his
aunts. This photograph is a sort of metaphor, again, for the
magnitude of the social transformations that the Chinese have
embarked on.
The third picture is just an exhortation on the side of a
building in a little village up in the mountains, again on a
rural road, about the fact that to avoid or resist taxes is to
violate the law, and to pay or cooperate in the tax process is
guangrong, ``brilliant and bright.'' It's an exhortation to
ordinary rural people out in the middle of nowhere that paying
their taxes is good and honorable, but not paying them is
against the law. It reminds us that the task of exhortation,
which Chinese Governments have always had--the moral
exhortation to the masses from the moral center which is the
role of the state in that society, not ours, but theirs--the
task still goes on when it comes down even to things like
getting ordinary people to pay their taxes out in rural
settlements far from the national or provincial capital.
I thought those were important things to touch on as we
think about what it means to create the rule of law in China.
The fourth thing--quickly before the yellow light goes on--
to mention is the U.S.-China Legal Cooperation Fund. It's
discussed in this piece I wrote for our magazine called
``Springtime in the Pursuit of Justice.'' Members of the
American business community that our Council embodies, have
since 1998, on a voluntary basis, put money into a fund to
provide financial support in small or moderate doses for
programs of legal cooperation between Chinese and American
partners across a wide range of legal subjects.
I want to give John Foarde, your deputy staff director,
great credit for his work when he was with us, in making that
fund come alive. It is an extraordinary thing. The money is
small: $25,000 here, $10,000 there. The projects are great: we
have 39 applications for the next round which is coming up next
month. They range from legal dictionaries to WTO instruction,
to women's legal rights, legal services for the poor,
compatibility of Chinese labor law with international
standards, all over the map. The thing which is most satisfying
to me is to see tough American business people, whose bottom
line concerns are primordial, saying ``Absolutely, this is a
great program,'' giving money across the range of projects and
subject matters that we have undertaken. It is very small. We
don't kid ourselves that this is going to change the world, but
we think it's a useful step and we hope that it reflects well
on the American business community. Thank you.
Mr. Wolf. Thanks, Bob.
Mr. Kapp. I do need those pictures back incidentally, I can
make copies if you want, if they are to go in the record, I'll
have copies made.
Mr. Wolf. You are to be congratulated for getting the Legal
Cooperation Fund started and John Foarde for his effective work
on it when he was at the Council.
Bill Sullivan, please.
STATEMENT OF WILLIAM SULLIVAN, DIRECTOR OF EXECUTIVE EDUCATION
PROGRAMS, MAXWELL SCHOOL OF PUBLIC AFFAIRS, SYRACUSE UNIVERSITY
Mr. Sullivan. Thank you. I'll also try to be brief. I'm
going to talk about the Maxwell School and our initiatives in
China specific to administrative law and rule of law. This is
all in connection with our broader set of initiatives--very
specific to the field of public administration and its adoption
within China. If I have an opportunity here later on, I would
like to talk very briefly about the creation of the field of
public administration in China because I think it creates
another interesting new avenue for promoting at least more
awareness of administrative law and procedure.
You will also note that some of my comments here will
complement some of the thoughts and suggestions that Nancy made
just a few minutes before me. I would also, before I say
anything about what we are doing, I have to say a kind word
about our sponsors. Two of them are at the table here today and
I want to reiterate, and it's come up and it will probably come
up again in our discussion, that our work--and ours is a very
small initiative within China--would not be possible without
the support of the Asia Foundation as well as the U.S.-China
Business Council. It's critical and very important money
because one of our big objectives is to find resources on an
annual basis to try to get our faculty and practitioners to
China to work with colleagues there and I want to thank you on
behalf of my associates at Syracuse University.
Maxwell's rule of law initiative began when one of our
Chinese partners, the State Commission of Public Structure and
Establishment Administration, asked if we would send experts to
participate in an administrative law conference they were
conducting in Mongolia. Since then the Maxwell School and the
College of Law at Syracuse University have collaborated with
Chinese legal scholars and professionals, judges and government
officials in their effort to debate, develop, and draft
administrative laws and procedures that will define the role
and responsibility of government agencies and the civil
service, a body of law that once adopted would be equivalent to
the 1946 Administrative Procedures Act in the United States.
Our program is small and our objectives are very simple; to
provide a forum for the open exchange of thinking, experience,
and information between the United States and Chinese legal
scholars and professionals, to develop training and teaching
materials that will educate Chinese scholars and government
officials about proposed changes in administrative law, to
create opportunities for American legal scholars and
professionals to learn from the Chinese experience, and to
promote greater understanding in China of the American model of
administrative law. One of the comments that Nancy made is
critical here because everyone is coming in with their own
model of administrative procedure and law and it's being
composed usually with very generous support of the national
government. [Laughter.]
Chinese partners, our partners over time have been some
very important ones. First the China National School of
Administration, which as you probably know is China's leading
training institute for the training of senior government
officials within China, established in 1993. We have been
working with them since 1993 and a lot of our work and training
materials are used by faculty there to inform government
officials across the country about the rule of law.
Their administrative law research group, led by Professor
Ying, China's leading administrative law scholar and a member
of the National People's Congress, and we also work with the
Legislative Committee of the National People's Congress.
Since 1996, we have been following a similar course of
activity each year. Each year, our Chinese counterpart
identifies what specific topics that they would like us to
address that year. For example, we have looked at the judicial
review process, the role that the State Governments in the
United States play in administrative procedure, the public
hearing process, administrative enforcement of rules and the
Freedom of Information Act. They will run a workshop that will
last for a week, then a delegation is selected from the
participants, usually about five or six to come to the United
States to meet with practitioners and experts here during the
course of about 2 weeks. One of those participants in the
delegation then stays at Syracuse University for a semester
taking courses and engaging in joint research with faculty.
Over time this relationship has produced some books, articles,
case studies, simulations and a lot of other materials that
have been used to inform Chinese scholars and professionals.
I can talk about the people that have been involved both in
China and the United States and I have lists of the
participants here, and it's a very impressive one. Let me just
talk about the lessons, what we've learned over time.
China's commitment to the adoption of a body of
administrative law is currently strong and unwavering. In fact,
the rapid development of the administrative law field is
nothing short of remarkable. In 20 years, China has moved from
an operational environment where only a vague notion of
administrative law existed, to the steady development of law
and regulations designed to control agency behavior and protect
the rights of citizens. The adoption of the State Compensation
Law, the Administrative Punishment Act, and directives on
public hearings are recent examples of this activity.
According to Professor Ying, a draft comprehensive
administrative procedures type body of law will be ready in
late 2003 or early 2004 for review.
Second point, in spite of this dramatic reform effort, it
will take years for the rule of law concept in governments to
become standard operating procedure. Given the size and
complexity of the Chinese system, the potential for resistance
and civil unrest, we should have realistic expectations and
maintain a long-term commitment to support ongoing reform.
Third, learning to utilize political opportunities to push
for legal reform in various sectors is essential for successful
implementation of new laws and regulation. An obvious example
of what I mean is China's entry into WTO. Five years ago topics
that would have been too politically sensitive to discuss, such
as the open government and transparency issues, are now freely
discussed, analyzed, and pursued.
Over the past 10 years, political efforts to curb
corruption, reduce the size of government, build a merit based
civil service, and to realign the role and responsibilities of
different levels of government, have opened doors for change.
Current political interest in environmental protection and in
public finance have created additional avenues for legal and
regulatory reform. The other example here is that 2 years ago,
the State Council and State Education Commission authorized the
creation of the field of public administration in China and the
developmental creation of the professional degree in public
administration. Twenty-four different universities across the
country were selected to develop and run professional programs
in public administration, and these will beginning this fall.
What's interesting about this is that a curriculum has been
prescribed by the State Education Commission, that stipulates
courses that you would all be very familiar with in a public
administration program, and one of the critical components of
this program is study of law and of rule of law. Thus creating
another opportunity for people to be able to discuss this
issue.
What's lacking here is what's lacking in most of these
efforts, that there aren't enough text books, materials,
information, and the right way to teach these courses, and this
is an issue that concerns us at the Maxwell School on a regular
basis.
It will take the combined efforts of scholars and
government officials to ensure the successful implementation of
new administrative laws. In China, academics are routinely
involved in the drafting of these laws. We would like to get
back involved in this in this country too, but--[laughter]--but
academic input is not enough. Scholars lack the practical
experience and this deficiency often renders their vision of a
new law as too idealistic and too complicated for
implementation. Bureaucratic ignorance and resistance often
affects implementation as well. Legal reform requires not just
new laws, but the adoption of a culture of respect and
adherence to the rule of law.
In our experience, we have found in our program that it is
essential to bring practitioners, scholars, and legislative
staff together and have workshops and discussion to develop
relationships and common understanding. These relationships
continue after our programs and promote more effective and
realistic practice of law.
Finally, the need to develop a rule of law in China has
become a Washington mantra, but while United States political
interest and support exists, the financial resources needed to
support American involvement is lacking. Finding resources to
support ongoing projects is a constant struggle. This is why
the involvement of the Asia Foundation, and the U.S.-China
Legal Cooperation Fund, the Ford Foundation and American
multinational corporations is so critical to the development of
rule of law in China. In comparison, Europeans, Canadians,
Japanese, and Australian Governments provide much more for
similar projects. We lag far behind these other nations in what
we can and should be doing. Thank you.
Mr. Wolf. Thanks very much, Bill. And thanks to all of you.
We will post the formal written statements on our Web site next
week, and we will post the whole transcript of today's session
on our Web site in about 5 weeks.
I want to follow up on Nancy Yuan's comments about the
large amount of money going to China from other countries and
governments for rule of law programs and training. I'm trying
to understand the implications of that for the United States.
Maybe you can start out Nancy, and I would like to hear from
all of you on the impact of this.
Ms. Yuan. Well I think it certainly gives people pause. I
think that one of the things that we have seen in terms of how
the United States is viewed, I don't think it's that the
Chinese are not interested in the American experience and
American technical assistance, they definitely are. I think
however, for the European donors who are putting a lot of
resources, running programs, have a lot of on-the-ground people
who are actually in offices open and available to them, there
is a certain amount of leverage that you get from that. You get
access to seeing draft legislation because you are there on the
ground. You are able to give the kinds of suggestions that you
might want to give to the right people at the right level
because you actually have some kind of investment in the
process.
For Americans who, particularly those in government, who
come and go--if you go on a study trip and there's a lot of
celebration and I don't even know what you want to call it--
surrounding a trip and then you leave, then the Chinese are
left with ``Well they want to help us, they are really
interested in what we are doing, they left us with these sort
of guidelines of criticisms of what we're not doing, now what
do we do? '' I think that there's confusion on the part of the
Chinese who are hearing that the United States is very much
interested in helping with things like WTO compliance, very
much interested in offering training programs and assistance
and nothing is forthcoming. Whereas, I think for European
donors who are on the ground and have people available who are
actually visiting them on a regular basis asking them ``What
are you working on now? '' and ``How are you doing and is there
something we can provide to you? '' you get a lot of leverage
from that.
Mr. Wolf. Anyone else? I would like to get into the
implications for U.S. national interests. On a recent trip to
Beijing, some people told me of their concern that the United
States legal methodology and standards were being adopted less
than one would hope because of the imbalance in training and
funding.
Mr. Reinstein. Yes, I think that's true. I would just
mention the two ends. One is actually from the perspective of
legal education. A lot of how our legal system develops derives
from how we teach in law school. American legal education is
very different than European legal education, very different
than legal education in most of the rest of the world. We think
that it's better, but it is certainly different.
The Chinese model of legal education now is heavily
oriented toward the European model. Even in drafting
legislation we are starting with European codes. Now, oddly
enough--changes taking place in other countries--the Japanese
have adopted wholesale, the European method of legal education.
Now they don't think it works and they have started 20 law
schools on the American model, which is a fascinating
development but, in China where we could have more influence
there, there is very heavy influence coming from the Europeans
and their civil law system. I think it's plain both in terms of
how they are teaching law in the law schools, and how that is
then translated in the premises and what they are starting off
with in new legislation.
Mr. Wolf. Bob, Bill.
Mr. Kapp. Ira, I would just say that you know, the impetus
behind American activity in China since about 1835 has often
been that ``we've got to get in there because otherwise the
other powers in the great power scramble are going to get there
first.'' That is an easy way to make a compelling case in the
United States and in some cases certainly from a commercial
standpoint, American companies that are accustomed to working
in an American legal environment would be delighted if the
Chinese legal codes all looked just like they did in
Cincinnati, but actually, for a commission like this the issue
is, I think, where is Chinese society going? What role does the
establishment of a stable, transparent, largely equitable legal
system with integrity have in that process? I would say that,
this is the interest of the United States. The interest of the
United States is in China becoming a society that treats its
citizens less arbitrarily and less capriciously and which
operates according to certain global standards of behavior,
many of them rooted in law, but not necessarily in law as it is
practiced in one country or another. So my feeling would be
that of course we should be active, and certainly I can't
imagine that more Chinese students do not come to American law
schools than any other country's law schools, it's certainly
the case in every other kind of advanced education.
I think we should welcome and increase as much as we can
the exposure of our Chinese friends to the way our legal system
works, but at the end of the day the goal here is not a kind of
a missionary goal of having everyone believe like the
missionaries. It's that China takes a path which creates a more
equitable society and a more dependable society in which the
role of a state, vis-a-vis the citizenry, is bounded in the
ways that Bill and others have spoken today.
Mr. Wolf. Thank you. John Foarde.
Mr. Sullivan. I just want to say, I think the resources are
critical but at the same time, I often have said to myself,
``I'm glad we don't have government support,'' because it would
affect the way we do business within China itself. There's less
freedom in many respects when you do receive resources from the
government. I have had some experience with government agencies
that have worked with us. I do think on the other hand that
there are programs--and I'm not suggesting that we get involved
in a discussion about money--but there are programs like the
Mansfield Fellows Program that would make connections as they
do in Japan, between our best people in government to build
connections with Chinese Government. In a small way I think the
Mansfield Program has 20 people they work with on an annual
basis. They spend a year or more in Japan developing
relationships. Programs like that, that really connect people
to people are really the most important.
Mr. Wolf. Thanks.
Mr. Foarde. Thank you. A specific question for Bob
Reinstein please. I was fascinated by your reference in your
remarks to teaching legal research by computer and wondered
what is your sense of how much PRC law, statute, court
decisions, etc. is available online in China.
Mr. Reinstein. I think very little. They do not, in terms
of judicial decisions, they don't have a reporting system
there. So it's not just that it's not available online, but
very few decisions are available in books. I think that it's
different with statutes, and one of the major changes--I think
Nancy was referring to this--one of the major changes that's
taking place over the last 5 or 10 years in transparency has
been the publication of statutes and regulations. That has not
filtered down yet to the court system, although the judges are
very interested in developing this.
Mr. Foarde. This ties into my second set of questions,
really to everyone. I'm interested in the whole question of how
you get training and information on all these things we've been
talking about, from the national level to the provincial level
to the local level. I think those of us who worked on this in
the context of business and commercial law and disputes,
understand that at the local level is where the rubber meets
the road. In all the other aspects that we are concerned about
as well: In legal aid for the poor, in citizens being able to
assert their rights against abusive state agency or state
actors, a wide variety of things, freedom of speech, freedom of
assembly, freedom of religious practice, it's at the local
level where these things need to be done. So my question to you
all is, ``Is there some way that the U.S. Government, through a
program could be involved in helping to spread the level of
training and the level of penetration of this information on
legal reform and rule of law? ''
Mr. Sullivan. Just from the government perspective--the
government officials and bureaucrats in the country--there's a
network that does exist that's helpful, I mentioned it, the
China National School of Administration. They have
relationships with provincial schools of administration in
every one of the provinces, schools of social science and
public administration that exist in municipalities, and there
are also county schools of administration, they are all
desperate for material and information and once these things
come to the top obviously they just flow down naturally to
these other institutions. There is a lot of interaction and
exchange between all these groups. That's one way to get
information out and I think that having relationships with
these institutions to develop curriculum, new topics, new ideas
is very critical.
Mr. Kapp. Could I add just a word on that, John?
Mr. Foarde. Would you?
Mr. Kapp. One of the interesting things about the knowledge
of law and of citizens prerogatives within the law seems to
spread in China is in the media. In fact, I think it is
interesting how many people watch television programs about
law. We watch our Greta Van Susteren I suppose, and our
``People's Court,'' so it's not entirely that one country is
fascinated and the other isn't.
Mr. Foarde. I know you are a Judge Judy fan. [Laughter.]
Mr. Kapp. Her cases are a little different, but one of the
really interesting things is that there really is a clearly
emergent pattern in Chinese reporting of official abuse. That's
legitimate. You can't denounce the senior leaders of the Party,
but you can take up the case of somebody who was injured on the
job and was stiffed by the local party committee and who went
to somebody else for redress and was stiffed by him or her.
That whole process of exposing grievances--it's in a sense a
very ancient Chinese process--exposing grievances of people
against authorities is enshrined in lots of local press. If the
United States Government said, ``we would like to start funding
journalism fellowships for Americans to go over and advise
local newspapers about how to report better on the law,''
because at bottom, it is worth remembering that the question of
whether or not the United States Government is a friendly
government with regard to the basic institutions of the Chinese
political system is in doubt in China. Therefore, every time
the government puts its imprimatur on something, as Bill
suggested, the question immediately arises as to whether this
is part of an unfriendly act by American Government which, in
fact, would like to see the Chinese system of government
transformed or even demolished. I'm not suggesting that the
U.S. Government wrap its mantle around expose reporting by
local journalists, but there is something to think about in
that field because that kind of journalism does play a very
real role.
Mr. Wolf. Thanks.
Mr. Kapp. Incidentally, I apologize and from now on I will
talk less.
Mr. Reinstein. Could I say a word about this? When we talk
about the rule of law, and Bob is correct, there's a lot of
definitions, one of course is the definition antithetical to
ours which is rule of law means that law is an instrument of
rule. But when we talk about the rule of law we are talking
about principles of transparency, we are talking about
principles of how laws get enacted. Then we are also talking
about enforcement problems, which Nancy referred to, that
relates to the government officials, but ultimately, in any
system of rule of law, it ultimately comes down to the courts.
It always comes back to the courts. You cannot have a credible
legal system unless you have judges who are well educated,
honest, and independent. This is one of the reasons that, in
our program, we have spent so much time trying to focus on the
judges. This is I think, one of the greatest challenges that
China has, both at the national level but especially at the
provincial level.
Until very recently, judges did not have to be lawyers,
they weren't lawyers. It was only a couple years ago that the
National People's Congress required all new judges to be
lawyers. Most of the judges in China have not been legally
trained, and of course they see themselves as part of the
government. If you ask American judges, ``Are you government
officials? '' you get a strange answer. They say ``No, we're
not government officials.'' Even though they are paid by the
government, they have offices that are paid for by the
government, they have law clerks paid for by the government,
but they see themselves as separate from the government. Their
role is that the government is just another litigant in their
courts. That, of course, is not the view in China. The view in
China is that the judges are part of the government and a
subordinate part of the government at that. Also the judges are
not well paid, which of course is an invitation to corruption.
So there is a massive problem that China has in reforming the
judiciary and no one is better aware of this than the Supreme
People's Court of China, which is one of the reasons I think
they are asking for all of these educational programs, to help
deal with this. This is a problem of an incredible magnitude
both just in terms of numbers, where you have over 100,000
judges, and in terms of a difference in education and a whole
difference in a way of thinking, if we really are going to have
a real legal system in China.
Mr. Wolf. Thanks. We are making one change to the
roundtables. Now that we actually have staff members on the
Commission with real expertise in particular fields we will
include our staff expert in the discussion. Susan Weld.
Ms. Weld. Thanks, Ira. It's great to hear all the testimony
today. I've been looking at some of the rule of law programs
now and over the course of my career for a long time and there
are two issues which I have always thought were important. One
boils down to the fact that your Maxwell School and Temple
School of Law efforts are elite programs, training elite corps
of officials to do certain rule of law functions. One issue is
``intake,'' where do the people who come to be trained come
from and how do they get there? And the other question is
``after care.'' Sort of like a pregnancy program: When students
get out of your programs, are they connected and supported?
This is important because they go out to work in society and
very often the things they've learned in a brief period of
their life may disappear. It would be great if there could be
some fixed way of remaining in contact and maintaining all the
progress that's made.
Mr. Sullivan. These individuals are selected by the Chinese
and Professor Ying and his colleagues--we have talked to them
about what works best--in a group as I mentioned, they like to
get a mix of scholars, practitioners, officials, bill drafters,
law drafters, and others that might be involved in the process.
The individuals that they have selected over time have been
very interested, competent, and appropriate for the exercise
that we have. If there is also a specific interest in, say,
administrative hearings of the judicial process that brings
into the organization as well.
After they have participated in this program and they go
back to their institutions, because we have made this contact
and have this relationship with them if we can, and if they
need support from us either through new materials and
additional information, we give it to them. We either get it to
them through Professor Ying or the central source and
distribute it out or they can deal directly with us.
Mr. Reinstein. Our students are nominated by the courts and
the agencies, and then we select from the pool that's being
nominated. One of the criteria for admission is that they have
very good English language ability; therefore they tend to be
younger. Because the Chinese are making a very big investment
in sending them to this program, both because they are bearing
a portion of the expenses and because they are really giving up
somebody's work for a year or 2 or 6 months or however long the
program is--bcause these are relatively long programs they are
picking people who they think are the up and coming stars.
We are going back next week to China, to talk to some of
our graduates to see what they've been doing since graduation.
As with the people involved in the Maxwell School, they are
going back to their agencies. In fact, I think some of the
agencies have made it a requirement for their attendance in the
program that they come back to work for the courts and the
agencies, because they did have a concern that the students
would come into this program and get this masters degree and
then go into private practice and make a fortune. So they did
require them to come back and work as judges or government
officials for a certain period of time. What we're going to do
is we're going to be doing periodic interviews and staying in
contact with the graduates of the program. We did get a report
from the Supreme Court, I think I mentioned this, that they are
taking the graduates of the masters program and making them
division chiefs. We're hoping that--with the law professors
we're teaching too--we're hoping that what we're teaching does
have a sort of a ripple effect, that the people will learn from
these programs and then use it to teach others.
Ms. Weld. Do I get a follow up?
Mr. Wolf. Sure.
Ms. Weld. I want to ask Nancy and Bob also, some of the
work you're doing is the other half of the Temple and Maxwell
story. You are training rule of law elites but some of what the
Asia Foundation and the Legal Cooperation Fund do is how to
make sure that the rule of law structures actually reach the
people at the bottom of society who need that kind of support.
I'm wondering about some other areas I haven't heard of yet.
One is the insurance area, pensions and health insurance. The
question is whether there is any way in which we could do rule
of law technical assistance to enable people who are laid off
from these State owned enterprises and so on to get that kind
of help. We in the United States have a lot of experience in
that, could we do that kind of thing and Nancy any of your
thought in this area, Bob also.
Ms. Yuan. Do you mean in terms of----
Ms. Weld. Helping both government agency and local legal
aid sectors try to get that kind of assistance. Some of the
state-owned enterprises offer these benefits and some benefits
are offered to one kind of employee over others. In some cases,
the benefit is not what it's said to be in the beginning. As we
have seen in Daqing, there can be unrest over that kind of a
question.
Ms. Yuan. I would have to think about how we would do that.
It is true that we work in large part in our legal aid programs
on the demand side. That people who, for whatever reason, have
either been laid off of work, have been injured on the job,
have not received whatever benefits they thought they were
entitled to. The problem in some cases is that the judgment may
be against someone who has no assets. Or the state-owned
enterprise is not providing the services because they don't
have the ability to do that. So I'm not sure what you mean by
technical assistance in helping them to structure the benefit
better, or----
Ms. Weld. I guess that was a double question. The technical
assistance would be at the agency level to actually work out
the insurance program and pension programs. There are pilots
being drafted especially in the cities, Shanghai, Tianjin.
Ms. Yuan. In the rural areas I think it would be very, very
difficult, because it is a resource question. It's the ability
of those government officials to, if they were to say, ``We
have a plan for you,'' the state-owned enterprise would ask,
``how much does it cost? '' What would we have to do and how
would we have to do it? It would be an ongoing process of
discussion, and I'm not sure how a foreign organization
necessarily could get in that mix without a lot of groundwork.
Just as a step forward, in terms of programs that we run on
migrant women labor, they were 3 years in the planning before
we were actually able to get government approvals, to get the
Women's Federation to feel that this was a safe activity for
them working with these ostensibly illegal workers in these
factories. It does take a little time to get these things
going, but we would certainly think about it.
Mr. Wolf. Thanks. Next is Holly Vineyard, who is from the
Department of Commerce and works for Undersecretary Grant
Aldonas.
Ms. Vineyard. Thank you all for coming today--the day right
before a long weekend and beautiful day at that. I really
appreciated hearing your testimony.
I would like to follow up on Ira's question in which he
asked you to look at the broad national interest. When you look
at other nations, especially the European donors' technical
programs, do you ever find anything that might be at odds with
our commercial interests? In particular, I have heard some
concerns about their standards training programs, in
particular?
Mr. Kapp. Holly, that question sort of logically falls to
me, I suppose, because I work for a business organization, but
I have to tell you I don't know. I could certainly talk with
our people in Beijing and possibly even with certain staff
members in Washington whom you and I both know, who are closer
to the daily work of our companies in China than, in fact, I am
and see whether we could get a bead on that, but I just don't
have an answer. I'm sorry.
It's an interesting question--if one discovered, as one has
discovered in the past with things like tied aid--that our
trade competitors in the China market are really attempting to
create institutional mechanisms within Chinese Government
organizations and in their processes which by definition create
non-tariff trade barriers, for example: No vehicles over 2,000
cc may be imported, while most American cars are over that
limit and most cars from country x are under, if we were
getting into that kind of thing, I think your question is very
well taken. That would be a matter of real concern and would
dictate that the Americans get in there with both feet just on
a rather crass, don't-let-the-other-guy-get-the-better-of-us
basis. I took Ira away from that a moment ago with my sort of
broader point about this Commission and its interests in broad
social evolution in China, but you represent the Commerce
Department on this Commission and those are very tangible and
real issues.
Ms. Vineyard. Thank you. I am curious too, about how your
organizations measure effectiveness in the training programs;
if you have any metrics that you use, I would be interested in
hearing about those.
Mr. Sullivan. Well, we use the standard material
evaluations that we conduct every time we run a training
session. Because we maintain relationships over time, we are
able to see if a program on judicial review, for example, had
any sort of impact in the way the thinking or the drafting of a
law has occurred and we are able to follow up on that.
Generally, the evaluations have been favorable and supportive
and we are seeing that our involvement has been able to create
an environment where we can openly discuss these issues and has
produced some outcomes in the way of interesting drafts of new
laws being proposed.
Ms. Yuan. In terms of the legal aid programs, you look at
the numbers of cases handled, what were the judgments on those
cases. You look at what the follow up activity is, if you're
working with a non-governmental organization that's delivering
the services, did they deliver the services? What's their next
step, what is the planning process in terms of continuing the
program? We have a variety of ways to measure activities. At
the end of every grant--we both do a mid-term evaluation and
ending evaluation for the grant--and are basically hand in hand
with the organization all the way through.
Mr. Reinstein. While we have the standard evaluations from
the students, we also have some outside evaluations that take
place from our sponsors. We are doing followup interviews now
with our graduates to see what effect the program had and what
positions they are taking and what's happening. As with the
experience with the Maxwell School, to the extent that we are
discussing that we are asked to give advice or to have input on
proposed legislation or regulations, it's pretty easy to
determine whether any of that advice or input had an impact
when you look at the final product.
Mr. Kapp. As you may know, the U.S.-China Legal Cooperation
Fund is tiny. It is so tiny, in fact, that it has no paid staff
at all. It's entirely volunteer. We decided at an early point
that we had one financial challenge and one measurement
challenge. We were uneasy about just sending dollar checks off
to Chinese recipients and saying ``Have a good day.'' We
generally make the payment to the American partner organization
in the bilateral cooperative effort, whether it be the American
Bar Association or Asia Foundation or Maxwell or anybody else.
We have asked for and have received reports, at the
conclusion of the activities for which our money was spent.
Sometimes that money was on a conference; often that money is
spent on something written, a study, a document and that
represents if you will, 100 percent achievement. We get a copy
of the paper. What we decided at an early point was that we
simply didn't have the resources to do, with our grants also
being as small as they are, was an extensive real foundation-
style financial and performance audit afterward. Basically, the
report that these projects send into us represents the
completion of their requirement, if they don't do it they
better never come near us again. But we do not have a way of
saying how many people achieved legal justice at the legal aid
office upriver as a result of the $5,000 or the $10,000 that we
gave to this program in 1999.
Ms. Vineyard. Thank you very much.
Mr. Wolf. Next is Jennifer Goedke who works for
Congresswoman Marcy Kaptur.
Ms. Goedke. I would also like to thank each of you for
coming in today. This has been very helpful.
We as a United States Government may not have a lot of
power influencing the Chinese Government when it comes to rule
of law, however we may have some influence over United States
businesses and other NGO's who are active in China. I guess my
question is for Mr. Kapp. How does your organization encourage
your member companies to either implement internationally
recognized labor and human rights law, or if not implement, how
can they be more supportive of rule of law efforts within
China? I know that during the PNTR discussion every business
was ready to get in, and looking forward to having a billion
more consumers for their products. As the companies move in,
what are they doing to implement what we would consider
American values or internationally recognized labor and human
rights?
Mr. Kapp. Well, first of all, the ``a billion customers''
thing is a canard and American companies by and large do not
subscribe to that. It's been around since the 19th century and
there were times in the past when people said, ``If every
Chinese family used a knife and a fork our Sheffield Mills
would produce knives and forks forever,'' but we're way beyond
that now. American companies in China realize that this is a
very difficult place to operate, that the realization of
economic benefit there is never easy and often slow in coming.
On the matter of implementing of values, this is a personal
matter now--I'm not speaking for the companies--because you
understand, Ms. Goedke, we don't speak for individual
companies. We are an umbrella organization with a lot of
company members, but they conduct their own affairs and I would
never say ``GE does this'' or ``GM does that.'' It seems to me
the issue is living and acting in accordance with your values
and I would suggest that most American companies in China have
not acted differently in China than they would in other
societies, including our own society as they go about their
work. That's not to say that they do not find morally
challenging situations in China. No one who goes to China can
fail to be there for more than a week without recognizing that
things do not run the way they do here and in some ways it can
be very perplexing. I think Americans and the companies who go
to China conduct themselves as they would elsewhere. That is
certainly true with regard to human resource and management
issues and I guess that's really all I can say on that.
What the Council can do--and in fact I've tried to move the
Council a little more in this direction--because it doesn't
always come naturally and easily to people who on a daily basis
are selling, marketing, looking at the bottom line, reporting
to the stock analysts and so forth--is to urge and encourage
these companies, on a voluntary basis, to get involved in
activities that do support these goals. I think the Fund, which
I don't want to get too sanctimonious about, has given us a
chance to put company money into something that I think is
useful in this regard.
Even in the next to the last issue of the China Business
Review, there's a lot of stuff on corporate responsibility:
Examples of ways in which companies have done well and so
forth. This is a chance to inform, through the Council, the
business community on best practices, good examples and the
like.
I do think it's important to start from the understanding
that American companies, when they are in China, are American
companies. They have their foibles--just look at what's
happened in the United States in the last 6 and 8 and 10
months. The Chinese are intensely aware of some of the failings
of our system of rule of law for example, that have come
bursting to light in the last 8 months here in this country.
But they do not get over to China and say, ``Now we are in the
heart of darkness. Now we can really give vent to all those
disgusting practices that we would never dare to try in the
United States.
Ms. Goedke. Thank you. My second question, since I have
just a few minutes remaining is for Ms. Yuan. I was interested
to hear about your program for migrant women workers. What are
some of the legal challenges that are unique to women in China?
Ms. Yuan. Healthcare. For migrant women, they come
basically from mostly poor areas to look for work. They have no
status where they come to live, so they are basically beholden
to the factory where they come to work. In their previous place
of residence, usually they either have a job or no job, but
their housing is taken care of, their health benefits are taken
care of, their childcare--if they have children--is taken care
of. When they come to be workers in another place, they don't
necessarily have those benefits.
There are all kinds of problems, there are access to
healthcare problems. For instance, if women want to get
divorced, there is no way that they can do that if they are in
another location. If they have a dispute over property back in
their home place with their family or if they have family
problems of any kind that need to be adjudicated in some other
way, other than through their family, they don't have any
access to legal assistance. There are a wide variety of
problems, domestic violence problems, abuse within the
factories, factory conditions, there are many problems that
afflict migrant workers, but women in particular.
Ms. Goedke. Thank you.
Mr. Wolf. I think that's an excellent question. Susan Weld
is beginning to develop a roundtable for October that would
deal with, political and economic empowerment of women, as well
as another roundtable perhaps also in October, on health
issues, which would include women as well as men and children,
so we do hope to get into more depth on those issues.
Next we have, actually, two people here from the Department
of Labor, but only one of them is going to be able to talk.
Jorge Perez-Lopez and Bob Shepard represent our commissioner
who is the Deputy Secretary of Labor, Cameron Findlay. Bob,
please.
Mr. Shepard. Let me ask if any of you have done any work in
the area of rural workers or if you know of programs that deal
with peasants or farmers that are about three-quarters of the
country.
Mr. Kapp showed a picture of a wall sign that exhorted
farmers and rural people to pay their taxes. The basic
economics in a lot of these rural areas are such that taxes are
something like $300 per year in many places in areas where per
capita income is $150 to $200 per year. Are you familiar with
the legal programs or how the system in some of these places
operates and whether anything is being done to address the
problems of these people?
Mr. Kapp. I think now we are onto something really
important and it relates to women moving to the urban coastal
production facilities and everything else. China has a very
significant social crisis in the agricultural sector, which of
course is, as you say, most of every province.
I read, on the way out and on the way back, a book by a
figure who used to be a very low-level party cadre in rural
Hubei Province, about his experiences. He published it in Hong
Kong, I actually pulled it down off the Internet. You're right,
and I'm delighted to know that somebody at Labor is onto the
massive dimensions of this. Crop prices drop--and they will
drop more, I might say, as a result of this Farm Bill. The
basic field crops grown by the peasants are now in adequate
supply and the price is going down. The more it marketizes, the
more the price goes down.
As the central government diminishes its oversized
bureaucracies as a part of its reforms, it essentially throws
more unfunded mandates--to use a 1990's term--down onto the
local levels of society without paying for them. The cadres at
the local levels hire more and more of their brothers and
sisters and cousins into what is called ``eating imperial
grain'', which is to say the government payroll, because it's
better than growing crops all day long.
The personnel levels at the local level metastasize but
there's no money. The lowest level officials have to send their
tax revenues up through the system. Taxes therefore become so
heavy that it doesn't even pay to farm anymore, you can't farm.
You leave the land and head for Shenzhen, to try to get a job
in a factory because the farm economy can't support you
anymore.
In the meantime, with all due respect to Nancy, healthcare
in rural China is essentially no longer available through the
government. Part of the whole process of turning to the market
economy and getting the government out of all these ancillary
businesses that used to be the socialist, sort of all
protective system, is that they disassembled their healthcare
system. But what you're onto is a crisis at the bottom of rural
society which leads to these migrations and to the creation of
this labor force, and it's not going to go away soon. I think
as to legal protections in that environment, this book was
written by an admittedly disillusioned party secretary, but my
hunch would be that it's a tough road to find a functioning
legal system that is protective of individual rights in that
environment.
Now, there are cases where justice is sought, not granted
and the person goes to endless lengths to achieve redress.
There are movies about this; you've seen the movie, ``Qiu Ju Da
Guanzi,'' for example. Here is a movie about a woman who seeks
redress because someone beat up her husband and she goes up,
and up and the whole movie is about this one woman seeking
finally to get redress. There are lots of cases of that. The
media play their role, but, as a systemic coverage of rural and
peasant society, it's going to take a long time, and it's very
difficult because in many cases the interests of entrenched
local elites at the bottom are endangered by the notion of
implanting this kind of justice system. That's really where the
crisis of the old society is being played out. My own view on
this is--and I know we are coming to the end--my own view on
that is that it is in fact the only way this is ultimately
going to be achieved over decades is going to be as the
consciousness and the practices that link the upper levels of
society, the central government, the new mentalities of the
more sophisticated levels of society permeate downward and
downward through the whole country. It's bigger than anything
in this country that I think we've ever seen.
Mr. Wolf. Next is Arlan Fuller who works for Congressman
Sherrod Brown. Congressman Brown is the newest member of the
Commission, named 2 weeks ago.
Mr. Fuller. Actually, as Ira said, Congressman Brown is
newly appointed to the Commission, this is my first opportunity
to participate with the Commission. I have certainly found this
discussion to be a great benefit and I look forward to working
with all of you in the future.
My first question, Mr. Kapp, you had said that China is not
the United States, and will not be the United States at least
in our lifetime. Change is difficult for everybody. You've been
working with legal reform in all of your programs. What areas
of the law have you found the Chinese Government to be most
receptive to and which areas do you find multiple roadblocks
toward legal reform?
Mr. Kapp. Sir, you used my name because of something I
said, but you also invited others to comment. I have talked so
much, I wonder if I could invite others to pick up their end of
it.
Mr. Sullivan. I would say that it's been my experience
because we were working there, that trying to develop rules and
regulations to govern what the government can do and not do,
working toward this Administrative Procedures Act, which would
be a great opportunity and a huge reform, and then using
getting people to live by that within the government, there's a
lot of receptiveness to do these activities and there is a
recent history of a lot of reform having to do with
administrative change. So I would say there's a great deal of
openness here about having specific reforms being achieved and
doing it well.
Mr. Reinstein. In the educational programs we have been
running, there has not been any kind of resistance to any
subject. They are interested in everything. In the earliest
classes, we taught American Constitutional law, including
freedom of speech, and it was not a problem. I was actually
surprised at how interested they are in American criminal
procedure, because there was a conventional wisdom that, this
was an area that we might want to be careful about, but they
were very interested in that. They were also very interested in
labor and employment rights. I think there is a tremendous
interest among the Chinese about learning a lot about other
legal systems. As Bob Kapp says, how they develop their legal
system is certainly not anything that anybody can predict, and
it's not going to be a clone of ours or a clone of any other
country's. It's going to be highly dependent on the political
and cultural and social situation in the country. In terms of
learning about how other countries, including the United
States, have operated a legal system or what legal principles
apply here, and how we protect rights in the United States, and
how we have an independent judiciary, and how we actually
control the government through the administrative law system,
these are matters that the Chinese are very, very interested
in.
Ms. Yuan. I think there's a great openness to learning
about other systems and learning about the various aspects of
law. It's a matter of what happens to it once it goes into this
relatively non-transparent system of government. Sometimes it
comes out as we might expect and sometimes it comes out in a
different shape altogether. We've seen it happen frankly with
the non-profit law--the new law governing non-governmental
organizations. They had lots of technical assistance, they had
lots of opportunities to learn about relatively good non-profit
laws. In the drafts that we've seen come out, it's not
necessarily as we would want to see it. That's just one
example, but I think this holds true for criminal procedure
law, it holds true for anything dealing with issues that the
government may consider to be sensitive at any particular time.
On the other hand, I think some of these things are also
demand driven. As we look at problems with labor in state-owned
factories, as we look at problems that communities are having
with local government officials, the Chinese realize that they
need to do something about these problems. They don't want
riots in the streets, and they don't want to have opportunities
for citizens to gather where people have a grievance that other
people can identify with. So I think that as they go forward,
particularly in things like labor laws, what we're looking at
is enforcement, problems with enforcement. They have laws on
the books, they're just not enforced, or they don't have
adequate laws. It just depends on the circumstance and timing,
and frankly, who's in charge of the effort to rewrite the law.
Individuals are important. If you find reform-minded people
they can often make things move in a way that you might not
expect in the Chinese system.
Mr. Wolf. Thank you. Next is Matt Tuchow who is with
Congressman Sander Levin.
Mr. Tuchow. Thank you. I wanted to first of all ask a
larger question which relates to the topic today of promoting
rule of law in China. What do you see as the appropriate role
of this Commission, Bob, you alluded at the beginning to that
topic. I'm interested in specifically how this Commission can
best serve its role to make specific recommendations to
Congress and the executive branch regarding promoting rule of
law, your thoughts on that.
Mr. Kapp. Well, let me offer just my personal experience.
The Commission has a legal definition and you all I'm sure have
read it. I would hope that in the area of law, the Commission
would effect a sea change in the long inherited approach taken
by the Congress in particular--less so by the executive
branch--to China, and that is that the Chinese are so lacking
in elemental virtues that the role of the Congress should be
one to crusade against their iniquities.
I would recommend that this Commission help to lead the
Congress in the direction of the most positive and active and
committed engagement as possible by legislators of all views
and parties with their Chinese counterparts on subjects of
interest here and concern, including the iniquities of the
justice system and the iniquities of the labor system and so
forth.
The greatest thing this Commission could do, vis-a-vis the
Congress, would be to get the Congress back on--back on is
hardly the word--but onto a course of active and committed
engagement with China on the issues that concern members and
concern the Chinese. You've heard today from all of us that
there are tons of things that the Chinese want to engage with
the Americans on that are of concern to all of us in this room.
So, Matt that's my point. I would urge you to go back to your
members and say, ``Call Congressman Don Manzullo on the phone
and tell him you want to get involved with the Inter-
Parliamentary Exchange with the National People's Congress on
June 5 and 6 and to make a commitment to doing that on a
longer-term basis.'' The NPC and the U.S. Congress come from
such different starting points and have such different
approaches and yet they both, in fact, are the lawmaking
institutions of their respective countries. There's an enormous
amount that can be done here, so I would hope that this
Commission would play a very positive role, particularly vis-a-
vis the Congress, in that regard.
Mr. Tuchow. Other panelists?
Mr. Sullivan. I think the role we play is just to gather
the information. I think there's an interesting point that Bob
made here. Everyone talks about the rule of law, but what does
it really mean? It's broken down into a lot of pieces and
subpieces that have to be explored and fully understood by
Members of Congress so that they know they have to speak in
terms of specific areas of law that are being addressed through
reform in China right now. I think more and more of this
information is gathered and shared in a non-biased way one way
or the other, and to be able to have some discussions about
this is the most appropriate thing to do. You shouldn't be
recommending increased amounts of foreign aid either, but you
should be talking about ways you can bring people together as
people. That's not an original thought certainly, but one
that's very essential, particularly when you are dealing with
China, because relationships and ties and activities develop
from relationships with people. Practitioners with
practitioners, Congressman with representatives of the People's
Congress and on and on.
Mr. Tuchow. Others?
Mr. Reinstein. In a lot of ways the rule of law is an
American invention and it's one of our most powerful exports.
It's had a tremendous influence all over the world. Since there
does seem to be a mutuality of interest between China and the
United States, on these issues, I don't really understand the
down side of Congress pursuing a stronger policy of engagement
in this area. I've had a lot of discussions with people who
wonder whether what we're doing in China is good. I can't quite
understand how it could be bad. I think if there is one area
where the United States and China can work together well, it is
on the development of a credible legal system in China and I
think that is a prerequisite to all of the other goals to which
Congress aspires.
Mr. Tuchow. Nancy, did you have any comments?
Ms. Yuan. No.
Mr. Wolf. We will go through one more round of questions.
Bob Reinstein, corruption is endemic in China. The senior
Chinese leadership recognizes it, but clearly doesn't know what
to do about it. Do you have any insight in terms of your own
teaching, visits, and discussions with your students and
lawyers and others involved with Temple, as to their concerns
about the danger and damage from corruption and what it's doing
to undermine development of rule of law and progress in China?
Mr. Reinstein. It is clearly one of the biggest problems. I
don't know, there have been some suggestions about this before.
As Bob Kapp said, one of the interesting things that is
developing in the Chinese media is this media offensive against
corruption, which is an interesting sign, it's the Party using
the media to try to mobilize a force against corruption. I
really don't know how this problem is going to be overcome. It
is a very serious problem. The fact that the Chinese understand
it's a very serious problem is a very good sign, it's not
something which there's any kind of State of denial going on.
Maybe that's a good starting point, but I think probably the
other panelists have better ideas than I do about this.
Mr. Wolf. John Foarde.
Mr. Foarde. Bill Sullivan, in your presentation you
mentioned that different donors are favoring or pushing
different models of administrative law and procedure. In real
short order, because we don't have time for the university
lecture that we would like to have or that I would like to
have, can you outline what the differences are in general terms
in the types of models that say the Europeans the Canadians,
others maybe would like?
Mr. Sullivan. I think either Nancy or Bob could probably
speak better to that than I could. I just want to say that a
lot of this activity that different sponsoring nations and Bob
would know about this too I'm sure that is usually directly
related to a lot of the commercial interests within the country
itself, so they are willing to promote and support reform of
law, rule of law projects that are related not necessarily to
trade, but just so that they can maintain relationship contacts
in that country in a wide number of areas throughout the
country.
Mr. Foarde. The people that are going to be deciding things
about things that are related to commercial interests, policies
and issues?
Mr. Sullivan. It's that, and the Chinese as you know very,
very well, are very adept at borrowing what they can from every
Nation on earth, and still come up with something that has
distinctly Chinese characteristics.
Mr. Wolf. Thank you. Susan.
Ms. Weld. I'm wondering if this is something maybe Nancy
could answer. Does the TV programming that has to do with
popular legal education have a rural focus, ever, or is it for
urban kinds of questions?
Ms. Yuan. No, it's for all kinds of questions. In fact,
sometimes the shows are call-in shows. There are radio shows
and television call-in shows where you can ask a question.
Ms. Weld. And you can call back from rural areas where
there is significant population?
Mr. Kapp. Ira was that short enough that I could add one
incident on rural matters? The Internet is going to make a
difference in this regard. I heard that from Sichuan local
officials on a wide range of things having to do with rural
awareness of what's going on outside the village.
Mr. Wolf. Holly.
Ms. Vineyard. I have a question I would like to pose to
whomever feels most comfortable answering it. What are the
major constraints that you face in designing and implementing
your technical assistance programs--other than funding--and
absent these constraints, what would you really like to be
doing?
Mr. Sullivan. Well obviously, the primary constraint in all
of these programs is making sure the materials that you are
using for these training programs are relevant and that it's
meeting the mark, so to speak. We have over time, learned that
what we propose in the way of a training program and the
content of the material that arrives in Beijing, or wherever
that might be in China to have the training program, very often
we have to change everything completely based on discussions
with people in the program, they want to learn something
completely different. We have to be very, very flexible and be
able to adapt the material to meet what the interest might be.
Mr. Wolf. Bob.
Mr. Shepard. Professor Sullivan and Mr. Kapp both noted
that programs funded by the U.S. Government often are regarded
with a certain amount of suspicion. We are in a situation that
the Departments of State, Labor, and Commerce are called upon
to conduct programs in the rule of law area, and I was
wondering if you have some thoughts about how those programs
could be best conducted to be as effective as they possibly
could in light of your comments.
Mr. Sullivan. Suspicion is probably not the best word. What
has to be ironed out more than anything else is the
relationship between the Party, the university, the group, the
non-profit that's going to be providing the work in China, and
what the expectations are. Usually there is conflict about the
agenda and what's expected on the other end, and there's a lot
of involvement there and that at the front of this is really
very, very critical to the ultimate success of the program. You
are going to run into less suspicion on the part of the Chinese
if you set out a good worthwhile activity that's well defined,
that's clear and understood and has simple goals.
Mr. Reinstein. Well, we received the first Federal rule of
law grant for China and this has not been a problem I think
because we asked for funding based on what the Chinese were
requesting and that's the funding we got, so there was a
mutuality of interest and I don't think that our program is
weaker, it's much stronger and we've actually been able to do
what the Chinese wanted us to do.
Ms. Yuan. I don't necessarily think that that's a problem
provided that you work through organizations that have the
trust of whomever it is you want to work with. The Asia
Foundation has been a federally-funded organization for a very
long time and we have never had a problem.
Mr. Kapp. And I think there's a role for Federal programs
in China. The Commerce Department is doing a great job on WTO
training already and intellectual property and so forth.
I've been on three party digital video conference where
people go into the Consulate General in Shanghai and the
Embassy in Beijing and we work here in Washington and we've
gotten into very blunt stuff.
I took a friend from a very, very well informed human
rights community to one of these things down at the State
Department studio and we had a great interesting evening. It's
not that no one will touch the U.S. Government. It's the more
nuanced thing that every panelist has spoken to here: What is
the government's relationship to the program and what are the
goals of each? And what is the subject matter? If the subject
matter is abuse of power by Communist Party cadres, then it's
going to be tough under any circumstances, but even tougher if
it is funded by the U.S. Government.
Mr. Wolf. Arlan.
Mr. Fuller. During the PNTR debate there was some
discussion over the Laogai prison system and last fall in the
House International Relations Committee there was a hearing on
the sale of organs taken from Chinese prisoners. In any of your
programs, has there ever been the issue addressed of prisoner
rights?
Mr. Kapp. I can't remember whether any of the programs that
the Fund has put small amounts of money into has been that
specific in its reach. I think probably not.
Mr. Wolf. Interesting question though. Matt.
Mr. Reinstein. One of our students is actually pretty high
up in the prison system in China.
Mr. Tuchow. One of the topics that's been alluded to by the
panelists today has been the structural issue of the
independence of the judiciary, and I think Bob, you referred to
the point that judges are underpaid and that could lead to
corruption etc., and so I'm wondering what sort of work either
your program has done or other programs have done that are
efforts to deal with bigger structural issues. You can train
judges and they may be very good judges, but if they are
beholden to others in the party or whatever, how effective is
that in the long run? The question really is about what sort of
programs exist now to look at this issue of judicial
independence and where have the Chinese expressed an openness
to dialog on these particular issues? I believe maybe even in
administrative law there's an opportunity.
Mr. Reinstein. Well, you know we are teaching in our
programs how an independent judiciary operates so the people
taking these programs will be learning that. How and what they
do with that information and how they solve the structural
problems, one of which is how they pay the judges, another of
which is how judges are viewed in the government hierarchy.
Those changes are changes that the Chinese will have to make if
they want to have an independent judiciary. I think they
understand that in order to have an independent judiciary those
changes are necessary.
Mr. Tuchow. Isn't there something in the Administrative
Code Article XX that requires an independent judiciary as part
of the accession to WTO?
Mr. Reinstein. Yes.
Mr. Tuchow. And is that being addressed?
Mr. Reinstein. Well I have a teenage son who would say: And
your point is? [Laughter.]
Mr. Tuchow. Is this being addressed in your training
programs regarding WTO?
Mr. Reinstein. Yes it is. I think a large impetus we talk
perhaps too much about WTO. The genesis of all this really
started with the development of the market economy itself. Even
without WTO, there are enormous forces operating on the Chinese
to develop a credible legal system because they understand that
you can't have a market economy without a credible legal
system. WTO in a sense may be a symbol or a culmination or a
codification of all of this but even without WTO, there are
these forces and not just from foreign investors, but from the
portion of the Chinese economy which is growing, which is what
we would call the market sector. The State owned enterprises,
as you know are a tremendous drag on the economy. The economic
growth that is taking place is in the private sector or the
market sector and a lot of Chinese who are operating their own
companies are becoming the leading advocates for the
development of a legal system, including having an independent
judiciary.
Mr. Wolf. Given that the next Commission event is a full
Commission hearing on WTO issues, Chinese Government
compliance, and their capabilities to implement commitments
this is a perfect point on which to end today's session. I want
to thank all four of you for coming here, on the morn of a
holiday weekend. This has been very useful to us, and it has
provided significant input into the report that the Commission
will make to the President and to the Congress in October.
On behalf of Senator Baucus and Congressman Bereuter, and I
assume, all of our respective bosses, I thank you very much for
a very useful session. We could have gone on much longer but
you have to stop sometime. Thanks.
[Whereupon at 12 p.m. the hearing was concluded.]
A P P E N D I X
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PREPARED STATEMENTS
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Prepared Statement of Nancy Yuan
may 24, 2002
Thank you for inviting me to represent The Asia Foundation at this
Congressional-Executive Commission Roundtable on Rule of Law Programs
in China. I have been intimately involved with the Foundation's China
law programs, and have worked with and had exposure to China programs
operated by other organizations for many years. In this regard, I am
pleased to offer my perspective on the Foundation's legal reform
programs in China, the expectations for and impact of such programs,
and, most importantly, how these programs are making a difference in
the development of a legal culture and legal practice in China.
The Asia Foundation has supported programs in China since 1979. The
Foundation's efforts over the years have focused on governance, legal
and economic reform, U.S. China relations, the development of the non-
profit sector and the role of women in society. Programs have included
U.S. study programs and exchanges in the Asia region, cooperative
efforts to develop cross-straits relations, technical assistance, and
support for public education on local governance reform and legal
rights.
The area of legal development is not a new one for The Asia
Foundation. Law reform and legal development have been a centerpiece of
the Foundation's programming throughout the Asia region for nearly 50
years, and has been a major area of focus in our China program since
1979. Our approaches and grant-making techniques in China are
consistent with those applied in other countries in Asia. We identify
constituent interests, evaluate needs, and provide sequential grants,
all of which are intended to strengthen legal reform and, in various
ways, promote citizens' rights. We work with government institutions at
the national and sub-national levels, and with citizens' groups and the
nascent NGO sector. As a result of a long-term, consistent commitment
to programs in China, the Foundation is able to work effectively with
both Chinese government and nongovernmental entities to develop and
implement programs throughout the country.
While support for rule of law programs in China is a relatively new
field, it has become a crowded one. Even before the 1997 Presidential
Summit, where former President Clinton and President Jiang Zemin agreed
on an agenda for rule of law development in China, many bilateral and
multilateral donors were supporting a wide range of legal reform
initiatives. Ongoing, comprehensive legal assistance and cooperation
programs are supported by Germany, Canadian CIDA, British DFID, the
European Union, Asian Development Bank, World Bank totaling millions of
dollars. These programs have included legal education, exchanges,
judicial training and administration, technical assistance in
specialized areas of the law, and technology and data base management
of legal information. This flood of assistance to China is a clear
acknowledgement of China's position in the world economy and the desire
of donors to encourage China toward predictability and transparency,
and, at the same time, address human rights concerns. To the extent
that the U.S. has been consistently involved in supporting on-the-
ground programs, these efforts have been largely conducted by the
nongovernmental sector, primarily by The Asia Foundation, the Ford
Foundation and a number of American universities which have provided
opportunities for Chinese legal professionals to study in degree and
non-degree programs in the United States. They are no where on the
scale of assistance provided by European and other donors.
The Asia Foundation's law program focuses on three major areas. The
first is the area of administrative law, where our programs are aimed
at developing the mechanisms to restrain the arbitrary exercise of
State power by regularizing the functions of government agencies at
different levels, defining citizens' rights, providing redress for
citizens who have been wronged by the actions of government, and
punishing offending officials. These programs are designed and
implemented in cooperation with the National Institute of
Administration, which is China's only civil service training
institution, Peking University Law School, and the China Administrative
Legislation Research Group, a national network of legal scholars,
jurists, and officials that support legal drafting and interpretation
of law by the National People's Congress. This ongoing effort provides
technical assistance to those drafting specific administrative rules
and regulations to limit the discretion of the state, by clearly
defining the boundaries of government authority. To the extent that we
hear about cases in the press involving citizens suing government for
vindication of their rights and compensation for loss (and many more
cases we do not hear about), these lawsuits are based precisely on
these new rules and regulations. The Administrative Litigation Law and
State Compensation Law, in particular, allow citizens to sue the state,
albeit only for concrete acts of commission or omission by specific
agencies or individuals.
Under this program of administrative law reform, the Foundation
currently supports a program to help in the development of a draft
Administrative Procedure Act, with planned submission to the National
People's Congress by the end of 2003. This Act will mandate
transparency, including prior notice, public hearings, consultations
and require consistency in rulemaking across bodies of law and at
different levels in China.
In cooperation with the Office of Legal Affairs of the State
Council, we are providing training for national, provincial and
municipal level officials in WTO compliance as it relates to
administrative law. Specifically, this training covers the provisions
related to uniformity in applying WTO rules and norms consistently
across all of China; transparency in providing prior notification of
new rules and changes in decisions, and points of contact for
complaints; and independent impartial review of trade-related decisions
at the national and sub-national level. This training targets the key
Legal Affairs personnel in every province in China, including the
autonomous region of Tibet, municipal personnel in the largest cities
(Beijing, Shanghai, Tianjin, Chongqing), as well as national Legal
Affairs staff.
A second area of emphasis for the Foundation is on legal aid, to
provide legal protection of the rights and interests of citizens under
civil law. This program focuses on China's national legal aid system,
under which assistance is provided to legal aid centers in some of
China's poorest areas, to ensure adequate legal representation for the
indigent and disadvantaged. There are now government sponsored legal
aid centers in every province in China, a wide range of legal services
operations run by nongovernmental organizations, women's groups and
universities, among others. These groups litigate, they counsel,
mediate and educate. The Foundation provides support for the case
handling of civil cases in five centers, under what the National Legal
Aid Center refers to as ``The Asia Foundation Model'', where funding
for case handling provided by the Foundation is matched by operational
funding from the local government.
The Foundation also works in partnership with the private sector,
for instance, in support of a program for migrant women workers in the
Pearl River Delta region in southern Guangdong province. With funding
from the Levi Strauss Foundation, this program provides services and
training for migrant women workers, who make up 60 percent of the
migrant worker population. The Foundation has been active in Guangdong
over the past 3 years, working with the local labor union, the Women's
Federation and university based research centers to provide counseling
and legal services to migrant women workers.
The Foundation also supports public legal education. In the program
for migrant women workers, the Guangdong Women's Federation developed
and last year, distributed 20,000 copies of Learn to Protect Yourself,
a handbook covering women's basic legal rights. This handbook will be
reprinted, in preparation for a distribution of 30,000 copies this
year. The Federation also operates ``street legal education fairs,''
provides consultation services, and supports a legal aid group serving
the migrant women population.
Another example is a television program the Foundation helped fund,
``Let's Talk About Law Today,'' which has become one of the most
popular television shows in China. This program, which appears on CCTV,
China's national television network, introduces the stories of ordinary
people whose legal problems are explained, addressed, or resolved
according to the law. In addition, analysis is provided by Chinese law
experts to introduce the concepts of law and its application to the
broader audience, and the program even offers legal advice. While ``Law
Today'' is not the first television law show dealing with legal issues,
its success has encouraged similar law programs and, at present,
approximately 2,000 provincial and city level stations now feature law
related programs.
New, large scale efforts are underway by the government to educate
Chinese citizens about their legal rights, using school textbooks,
media campaigns, and through the efforts of legal aid centers and
nongovernmental organizations. One can argue that the Chinese
government is merely protecting its own interests and stability in the
country, by ensuring that citizens feel that their rights are being
protected under the law. This works to stem a rising public anger
against arbitrary behavior by local government officials, state-owned
enterprises where safety precautions are not enforced, and even where
public services are not responsibly delivered, such as in health or
education. At the same time, increased awareness among Chinese citizens
of their rights under the law is slowly building a sense of legal
culture that had not existed previously in the society.
This is all in the context of a rapidly changing environment. As
you have heard in past testimony before this Commission, at the end of
the Cultural Revolution, there were fewer than 3,000 lawyers and a
handful of law school programs. Today China has hundreds of law schools
and over 125,000 lawyers. In addition, hundreds of laws and regulations
have been promulgated, including the 1998 Law on Lawyers, which
basically creates a legal profession in which lawyers are no longer
considered civil servants, but professionals responsible to their
clients, and in 2000, a law on legislation, which is the first law of
its kind to define a legislative process.
We all recognize there is a long way to go and there are
significant limitations for donors and others supporting legal reform
efforts. Even with laws in place and even if plaintiffs are able to win
judgments, these are ineffectively enforced. Lack of judicial
enforcement is one of the most serious problems in commercial and other
disputes as well. In addition, we are well aware of the limits to
public legal education. Just informing the public about existing law is
a start, but it is not enough to ensure enforcement. Finally, public
finance is a serious problem for legal and judicial reform. Without a
public revenue stream adequate to pay for the services to be provided,
it is difficult to recommend reforms because it is difficult to
guarantee that they will be sustained.
On the other hand, there is currently a momentum that is driven by
a domestic demand, and there are opportunities to work with the Chinese
government and with the nongovernmental sector to expand and strengthen
that momentum by delivering programs that address real problems at both
the grass roots and policy levels. The Asia Foundation believes that
these programs will make a positive difference over time. In the case
of legal aid, they already have.
As China proceeds further into the reform process, there is now the
prospect for genuine progress and real cooperation, but only through
consistent effort and realistic expectations. We believe that these
programs will contribute over time to the protection of the rights of
the individual Chinese citizen and, overall, to American interests in
China.
______
Testimony of Robert J. Reinstein, Dean, Temple University Beasley
School of Law Before the Senate Appropriations Committee, Subcommittee
on Foreign Operations
MARCH 7, 2002
It is a great pleasure to have an opportunity to convey our sincere
gratitude to you and the members of this Committee for your support for
Temple Law School's rule of law programs in China. We are proud that
our projects are contributing to the establishment of the rule of law
in China, and we welcome this chance to brief you on what we have
accomplished so far and what, with your continued help, we intend to
do.
As you know, President Bush recently returned from a visit to
China, where he spoke on the campus of our Chinese partner institution,
Tsinghua University. Tsinghua University is the ideal partner as it is
a forward looking university with a tradition of educating many of
China's leaders, including Zhu Rongji, the current premier, and Hu
Jiangto, the expected next President of China. Our other partners in
this project are New York University, Brigham Young University, the
State Agency for Foreign Experts Administration (SAFEA) of the PRC, and
the Supreme Peoples Court and its National Judicial College. We were
invited into China by the government because of Temple's history of
educational involvement in China (Temple was the only American
university to award an honorary degree to Deng Xiaoping during his 1979
state visit to the U.S.) and because the Chinese government was aware
of and impressed by a similar innovative program that Temple has
conducted in Japan since 1994. We know that a major factor in our
success is the trusting working relationship we have developed with our
Chinese partners.
The rule of law is necessary condition for a functioning democracy.
Democracy and the protection of individual rights cannot be realized
without a transparent, rules-based system that applies to all,
including the government. The rule of law itself cannot operate without
a judiciary that is well-educated in the law, honest and independent.
Another prerequisite is legislators and regulators who are
knowledgeable about how law operates in a democratic society with a
market economy. All of these elements are essential to the protection
of individual rights. When fulfilled in China, these requirements will
hopefully result in a legal system suitable to the needs of the Chinese
people and compatible with international legal norms and standards. The
extent to which this occurs will be decided by the Chinese nation. We
are proud to provide educational programs, advice and assistance toward
these ends.
Temple's rule of law program in China started with a Masters of Law
(LL.M.) program. This is the first foreign law degree-granting program
in the history of China. Our students have included national and
provincial level judges, ministry officials, legislative branch
officials, law professors and minority students from Western China. The
original curriculum focused primarily upon business subjects but also
included courses in American constitutional law and professional
responsibility. As importantly, by using the American case study
method, the students, including of course the Chinese judges and
ministry officials, were immersed in appellate decisions that
inherently exposed them to fundamental concepts of due process and
equal protection, including the resolution of disputes through an
independent judiciary, the supremacy of law and the submission of
contested governmental actions to enforceable judicial review. Today,
the Masters of Law program also offers courses in labor and employment
law, environmental law, trial advocacy and criminal procedure. As noted
below, with the support of this Committee, we have expanded the LL.M.
program and instituted additional short-term non-degree judicial
training programs. We have also undertaken a host of supporting
activities as requested by China's Supreme Judicial Court and the
National Peoples Congress. All of these activities now accrue as
integrated parts of Temple's Business and Comparative Law Center (BCLC)
which are more fully described below.
With the development of a market economy and entry into the World
Trade Organization, our Chinese partners fully understand the necessity
of developing a credible legal system. Many new laws have been passed
that could not have been imagined before, including, for example, a new
contracts law. Our Chinese partners also appear committed to making
major necessary reforms in the country's judicial system. Last year,
the National Peoples Congress passed a law requiring all new judges to
be legally-educated and members of the bar. The Supreme Peoples Court
has issued new directives on the enforceability of arbitration awards
and is creating a new economics court division. Currently, the Supreme
Court is drafting a code of judicial ethics; and the National Peoples
Congress is considering the enactment of a law governing real and
personal property rights. At the request of our Chinese partners, we
are honored to provide assistance on both of these projects.
THE BUSINESS AND COMPARATIVE LAW CENTER
The BCLC consists of several concurrent projects that share the
goal of working cooperatively with key Chinese legal institutions to
strengthen the rule of law in China. This includes degree and non-
degree educational programs for Chinese judges and legal officials;
collaborative consultation on specific law reform projects; and
providing assistance to the Chinese government in meeting its
membership obligations for membership in the World Trade Organization.
The BCLC also assists the Chinese government in developing
transparent and well-considered laws. China is undergoing a major law
reform effort as it becomes a member of the WTO, and we know that China
is receptive to receiving input from experts from the U.S. and other
nations in this process. Our work in China has provided us with crucial
contacts in the Chinese legal agencies and a high degree of credibility.
I am pleased to report that all of these projects are proceeding on
schedule and as we had hoped.
a. education of chinese judges and other chinese officials
Judicial Training Program
Our faculty and administration has developed a close working
relationship with the Supreme Peoples Court and the National Judicial
College.
Our judicial training programs take several forms:
Short Term Seminars
An intensive Legal English Training program in Spring, 2002
A month-long intensive judicial training program in the U.S. in July,
2002
LL.M degree programs at the Temple/Tsinghua Program and U.S. Law
Schools
Brigham Young University is designing an intensive legal English
program to train a pool of approximately 60 members of the Supreme
Peoples Court selected by Temple from applicants proposed by the court.
The goal is to bring the judges to a level of English language
proficiency, which will allow them to use English language legal
resources for study and to access these resources after they complete
their training. From this pool of judges, Temple will select candidates
to attend the summer judicial training program in New York as well as
LL.M. degree candidates for Temple's Beijing and Philadelphia-based
LL.M. programs. This course is on schedule to begin in late spring,
2002 and is projected to run until July 15, 2002.
N.Y.U.'s Institute of Judicial Training has been actively involved
in setting up a four-week training program that is on schedule to begin
on July 22, 2002.
Temple's LL.M. degree program in Beijing is currently training
eight members of the Chinese judiciary and, as mentioned above, we are
already involved in the planning for a legal English program which will
provide us with a pool of qualified candidates for the Temple/Tsinghua
LL.M. program in Beijing as well as Temple's LL.M. program in
Philadelphia.
The Temple Masters of Law Program
Temple's 2-year LL.M. program in Beijing, which teaches U.S. and
international law, began in 1999. The program currently has a class of
32 students, including eight judges, three Tibetan lawyers, four law
professors and nine Chinese government officials, including the
Division Chief of the NPC Legislative Affairs Commission, and staff
attorneys from the China Regulatory Securities Commission, NPC
Committee on Internal and Judicial Affairs and the Ministry of Foreign
Trade and Economics.
Our curriculum includes courses on Constitutional law , Labor and
Employment law, Criminal Procedure and Trial Advocacy, International
Environmental law and Business and Commercial law.
Our Criminal Procedure and Trial Advocacy course was specially
designed by Temple Professors Edward Ohlbaum, one of the leading
experts in advocacy law in the U.S., and Associate Dean and Professor
of Law JoAnne Epps, an expert in criminal law and procedure. Professors
Epps and Ohlbaum, are in Beijing at this moment teaching this course to
our Chinese students.
Professor Michael Wishnie of New York University Law School is
teaching U.S. Labor and Employment law. This course is of great
importance for a country such as China with a developing market
economy.
All of our programs are taught in English because English is the
international language of law, business and the Internet. We select
students with sufficient English language ability and invest
significant resources to bring their language ability to the level at
which they can study directly from primary U.S. and international
source materials. We believe that an important aspect of the program is
not only to impart information about the current state of legal
thinking on the international level, but also to provide as many
influential legal professionals as possible with the capacity to
continue to interact with the international legal community long after
they have completed their formal training.
Our LL.M. students study in English and have access to a computer
lab. They are required to do assignments using computers and legal
research. We believe this is a crucial element of the program as it
gives our graduates long-term access to international legal materials
as they develop long after they graduate.
b. business and comparative law forums and working groups
One of the major goals of the Business and Comparative Law Center
is to create working groups consisting of American scholars,
attorneys,judges and business people who will provide technical
assistance on a mid-to-long term basis to Chinese legislators,
regulators, scholars and judges as they develop China's legal
infrastructure to accommodate China's emerging market economy. The
working groups will concentrate on selected developing legal issues of
particular importance to the reform of the Chinese legal system.
Temple has been meeting with Chinese academics, government
officials and business people to ascertain the areas in which such
working groups might be well received and fruitful and are quite
pleased with our efforts and the results to date.
Temple, Tsinghua and FADA Universities and the China
Society of Comparative Law (CSCL) are jointly forming a Working/Study
Group under the leadership of Professor Jiang Ping, FADA professor and
Chair of CSCL, and the leading scholar of civil and commercial law in
China. Professor Jiang has been designated the key drafter of the new
Chinese property law by the National Peoples Congress. The most
important goal of the group is to provide support through research,
exchange of academic visits, seminars and counseling in the various
areas of property law. We will also create a listserve so that the
discussions can continue uninterrupted.
The first session of the working group will take place June 17-18,
2002, in Beijing.
From July 8 to August 9, 2002, eight prominent Chinese
WTO scholars will be in residence at Temple Law School where they will
pursue research on WTO issues facing China. This working group, chaired
by Temple Professor Jeffrey Dunoff, will include meetings with key
American WTO scholars for discussion and professional exchanges that we
expect to continue beyond these meetings.
Professor Amelia Boss was invited to lecture at Tsinghua
University on electronic commerce in November 2001, by Vice Dean Wang
Zhemin. While in China, Professor Boss discussed the possible formation
of a working group on the subject of electronic commerce.
Professor Scott Burris visited Beijing in December 2001,
with the purpose of discussing the creation of a working group on
health law and policy. At present, Chinese legal scholarship has not
progressed to the point where they have even begun to consider this
topic despite its importance to an emerging market economy. Regulatory
and legal structures in this area are absent or deficient. Professor
Burris' visit resulted in two promising initiatives--a Health Law
Working Group incorporating faculty at Tsinghua, Temple, the Union
School of Public Health/Chinese Academy of Preventive Medicine and
other institutions; and a plan to assist the Chinese Academy of
Preventive Medicine in the development of a new institute on Health Law
and Policy to be housed in the Chinese Centers for Disease Control and
Prevention, a new governmental agency now being organized.
c. assisting chinese government and legal officials with wto compliance
In addition to our overarching goal of fostering the rule of law in
the PRC, an important goal of the BCLC is to assist the Chinese
government with WTO compliance issues. We are pleased to report that we
have already made a great deal of progress with respect to this goal.
The projects listed below are in addition to the WTO working group
described in the preceding section.
On December 9-10, 2001, Professor Jeffrey Dunoff, an
expert in WTO matters, presented a 2-day seminar on WTO compliance
issues to 91 Chinese judges at the invitation of the National Judicial
College of the Supreme People's Court in Beijing, China. The lectures
were very well received, with the vast majority of the judges giving
the presentation a grade of 90 percent or better.
On December 1, 2001, Professor Dunoff gave a 2-hour
lecture on WTO law to students and faculty at FADA.
On December 12, 2001, Professor Dunoff gave a lecture to
approximately 25 students and faculty at Tsinghua University School of
Law on WTO entitled ``Beyond Doha: The Future of the Trade Regime.'' He
provided all attendees with copies of three law review articles he had
written in the area.
Professor Dunoff has been invited by Yuan Jie, the
Division Chief of the National Peoples Congress Legislative Division to
address the members of her department on WTO issues. Yuan Jie is
currently a student in the Temple-FADA LL.M. degree program. Professor
Dunoff has also been invited to return to the National Judicial College
for additional lectures on WTO topics.
Professor Zhang Mo, the director of the BCLC, has
spearheaded the discussions with the Supreme Peoples' Court. In these
discussions the Court has asked that Temple emphasize WTO issues in the
judicial training programs it provides for the next 5 years.
The above described activities of Temple's BCLC are a modest but
encouraging beginning. Much remains to be done. Programs like Temple's
BCLC should be replicated throughout China. Additional programs aimed
specifically at provincial level judges and regulators should be
undertaken. Hopefully, a program to allow American JD students to study
in China for a semester will also emerge. With the support of this
Committee, these and other innovative rule of law programs can and will
flourish in China.
Again, my profound thanks to the Committee for its support of what
Temple is doing in China and for your understanding of its importance.
Respectfully submitted,
Robert J. Reinstein, Vice President and Dean, Temple University
Beasley School of Law.
SUBMISSION FOR THE RECORD
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