[Joint House and Senate Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
LAW IN POLITICAL TRANSITIONS: LESSONS FROM EAST ASIA AND THE ROAD AHEAD
FOR CHINA
=======================================================================
HEARING
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JULY 26, 2005
__________
Printed for the use of the Congressional-Executive Commission on China
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
CHUCK HAGEL, Nebraska, Chairman JAMES A. LEACH, Iowa, Co-Chairman
SAM BROWNBACK, Kansas DAVID DREIER, California
GORDON SMITH, Oregon FRANK R. WOLF, Virginia
JIM DeMINT, South Carolina JOSEPH R. PITTS, Pennsylvania
MEL MARTINEZ, Florida ROBERT B. ADERHOLT, Alabama
MAX BAUCUS, Montana
CARL LEVIN, Michigan
DIANNE FEINSTEIN, California
BYRON DORGAN, North Dakota
EXECUTIVE BRANCH COMMISSIONERS
STEPHEN J. LAW, Department of Labor
PAULA DOBRIANSKY, Department of State
David Dorman, Staff Director (Chairman)
John Foarde, Staff Director (Co-Chairman)
(ii)
C O N T E N T S
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Page
STATEMENTS
Opening statement of Hon. James A. Leach, a U.S. Representative
from Iowa, Co-chairman, Congressional-Executive Commission on
China.......................................................... 1
Birkle, Gretchen, Principal Deputy Assistant Secretary, Bureau of
Democracy, Human Rights, and Labor, Department of State,
Washington, DC................................................. 2, 3
Cohen, Jerome A., professor of law, New York University School of
Law, New York, NY.............................................. 8
Hsieh, John Fuh-sheng, professor of political science, University
of South Carolina, Columbia, SC................................ 12
Ohnesorge, John K., professor of law, University of Wisconsin
School of Law, Madison, WI..................................... 13
APPENDIX
Prepared Statements
Birkle, Gretchen................................................. 26
Cohen, Jerome A.................................................. 28
Hsieh, John Fuh-sheng............................................ 36
Ohnesorge, John K................................................ 37
Hagel, Hon. Chuck, a U.S. Senator from Nebraska, Chairman,
Congressional-Executive Commission on China.................... 40
Leach, Hon. James A., a U.S. Representative from Iowa, Co-
chairman, Congressional-Executive Commission on China.......... 41
LAW IN POLITICAL TRANSITIONS: LESSONS FROM EAST ASIA AND THE ROAD AHEAD
FOR CHINA
----------
TUESDAY, JULY 26, 2005
Congressional-Executive
Commission on China,
Washington, DC.
The hearing was convened, pursuant to notice, at 1 p.m., in
room 419, Dirksen Senate Office Building, Representative James
A. Leach (Co-chairman of the Commission) presiding.
OPENING STATEMENT OF HON. JAMES A. LEACH, A U.S.
REPRESENTATIVE FROM IOWA, CO-CHAIRMAN, CONGRESSIONAL-EXECUTIVE
COMMISSION ON CHINA
Representative Leach. The Commission will come to order.
First, let me say, Senator Hagel is tied up, briefly, on the
floor for a vote and he will be joining us in 5 to 10 minutes.
The House has also scheduled votes that are about to commence
very quickly, and there will be four, so it will take 40
minutes or so, so I will need to go and return.
But Senator Hagel has asked if I could commence the
hearing, and we will begin with you, Madame Secretary.
Let me say, I have a sonorous opening statement that I
would seek unanimous consent to put in the record. I see no
dissenters, so without objection, it shall be entered.
We will turn to Secretary Birkle. Gretchen Birkle is Deputy
Assistant Secretary in the State Department's Bureau of
Democracy, Human Rights, and Labor. She comes to us with a
background at the International Republican Institute, and I
guess also within the office of Senator Arlen Specter, who we
admire greatly. She has a degree from Johns Hopkins SAIS, which
we respect greatly, and she is, as I am told, a Russian
scholar, which I once aspired to be at SAIS and elsewhere. So,
dobry'den, Ms. Birkle.
Ms. Birkle. Dobry'den.
Representative Leach. Please commence as you see fit.
[The prepared statement of Representative Leach appears in
the appendix.]
STATEMENT OF GRETCHEN BIRKLE, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND
LABOR, DEPARTMENT OF STATE, WASHINGTON, DC
Ms. Birkle. Congressman Leach, thank you very much, and
thank you for your commitment to this issue.
I am delighted to be here today to testify before the
Congressional-Executive Commission on China. The theme of my
testimony today, rule of law in China, is of great interest and
importance to the State Department, especially the Bureau of
Democracy, Human Rights, and Labor. Secretary Rice spoke about
the rule of law during her recent visit to China on July 10.
I appreciate this opportunity to provide our assessment of
the current rule of law and human rights situation in China.
Since the grim last days of the Cultural Revolution when
courthouses and law schools were closed and a handful of
leaders arbitrarily exercised power, China has made some
progress toward modernizing the legal system.
Representative Leach. Excuse me, if I could interrupt,
briefly. I am very apologetic. The phone call I just received
indicates that the votes have started. I think that, out of
etiquette and with an open panel, that we might ask you to
commence all over when Senator Hagel arrives.
Ms. Birkle. That is fine.
Representative Leach. I think that makes more sense. I am
very apologetic. We thought we could give 5 or 10 minutes into
this, but we cannot. So, I, at this point, would call the
Commission into recess. Then when Senator Hagel arrives, he
will call us back to order. We expect this in 5 to 10 minutes.
Ms. Birkle. Fine.
Representative Leach. I am awfully apologetic, for such a
distinguished witness, to be confronted with one, and then
none.
Ms. Birkle. No problem.
Representative Leach. The Commission stands in recess.
[Whereupon, at 1:07 p.m. the hearing was recessed.]
after recess [1:58 p.m.]
Representative Leach. The Commission will reconvene.
Let me express my apologies to the Secretary. We are like
Pavlov's dog, we respond to bells and lights around here. The
Senator is also detained for comparable reasons, and I am very
apologetic for it.
At this point, I think it would be best if we commenced
from the start, if that is all right. Of course, without
objection, your full statement will be placed in the record and
you can proceed as you see fit.
Please proceed.
STATEMENT OF GRETCHEN BIRKLE, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND
LABOR, DEPARTMENT OF STATE, WASHINGTON, DC
Ms. Birkle. Thank you. Again, thank you for your commitment
to this issue.
The theme of my testimony today, the rule of law in China,
is of great interest and importance to the State Department,
especially the Bureau of Democracy, Human Rights, and Labor.
Since the grim last days of the Cultural Revolution when
courthouses and law schools were closed and a handful of
leaders arbitrarily exercised power, China has made some
progress toward modernizing the legal system, but progress
toward rule of law has been limited. A society living under the
rule of law means more than laws on the books and open
courthouses.
It requires independent institutions capable of dispensing
justice fairly, transparently, and consistently, and it
requires political leaders willing to submit themselves and
their authority to the law, just as all other citizens.
China has passed laws, opened law schools, established
examination requirements for judges, and expanded legal aid.
However, these changes are not enough. These kinds of actions
must be followed by the creation of an independent judiciary.
Chinese authorities use the law to rule. Human rights
defenders, democracy activists, and those expressing views that
challenge the Party's control are often convicted and jailed on
trumped up charges. The case of Uighur businesswoman and
activist Rebiya Kadeer is illustrative of the Chinese
Government's use of the law to repress those perceived as a
threat to power.
China's use of the law to repress is not limited to members
of any one group. In another example, Hada, an ethnic
Mongolian, has been in prison since 1995 for his peaceful
political activities, including writing articles and books on
political theory and Mongolian language and culture.
The Chinese Government has also used the legal system to
control and regulate religious and spiritual activities. For
instance, in October 2003, Beijing-based house church leader
Christian Liu Fenggang was detained in Zhejiang Province, while
conducting an investigation into reports of church demolitions
and the detention of religious leaders. In August 2004, Liu was
convicted on charges of disclosing state secrets and sentenced
to three years in prison.
Ms. Kadeer, Mr. Hada, and Mr. Liu's cases are three
prominent examples of the Chinese Government's use of the legal
system to restrict freedom of expression and those it feels
threatened by. In China, law is an instrument of the
government, but not yet a mechanism to protect the people.
Freedom and legal reforms are urgently needed in China, and
wanted by the Chinese people. Last month, international media
reported on a land dispute between peasants and local officials
in Shengyou village, Hebei Province. According to media
reports, when the peasants of Shengyou village defied orders to
surrender their land to local officials, the officials hired
hundreds of armed men to attack the villages. A violent clash
resulted that left six farmers dead and as many as 100 others
seriously injured.
On June 3, there was also a labor incident in Guangdong
Province involving several hundred anti-riot police firing tear
gas into a group of 3,000 workers. As the workers pelted cars
and buses with rocks and bricks, they chanted demands for
higher pay. The workers, lacking independent labor
representatives or a means to resolve a compensation dispute,
turn to protests.
China has experienced tremendous economic progress over the
past 20 years, but to achieve sustainable internal development
and integration into the international community, we encourage
China to develop a legal system that protects property rights
and that Chinese citizens trust and use to resolve disputes.
There are signs, however, that Chinese citizens' rights
consciousness is increasing, and they increasingly expect the
legal system to provide justice. Several stories of wrongful
executions of individuals whose trials did not meet
international human rights standards resulted in a public
outcry on the need for reform of China's criminal justice
system.
Yet, the problems are manifest. Many defendants have been
tried without adequate legal representation. Same-day
executions, which do not allow for full due process, are not
uncommon, though some in government recognize the need for a
more deliberative review process. Coerced confessions, lack of
defense counsel, law enforcement manipulation of procedural
rules, pervasive presumption of guilt by law enforces, judges,
and the public, and extra-judicial
influences on courts continue to undermine the fairness and
credibility of the criminal process in China.
Equally troubling is the intimidation, detention, and
arrest of those seeking to use the law to secure the freedom of
Chinese citizens. Defense lawyers in China are coming under
increasing pressure, especially those who use the legal system
to protect the rights of fellow citizens. Lawyers representing
activists, journalists, Falun Gong practitioners, and others
perceived to be a threat to the government have been harassed,
intimidated, and detained.
In March 2004, the National People's Congress amended
China's Constitution to include the protection of human rights.
While the passage of this amendment is welcome news, it will
only become truly meaningful and effective if it results in
genuine reform and protection of the rights of the people.
President Bush has made the promotion of freedom and
democracy the cornerstone of U.S. foreign policy. This
principle guides decisions about the character of our foreign
assistance and allocation of resources.
Through a Congressional appropriation, the State Department
is funding rule of law programs. We are actively engaged in
promoting the rule of law in China through dialogue, programs,
and multilateral fora.
As the President said, we must help other countries ``build
free institutions that will protect their liberty and extend it
to future generations.'' We take seriously our responsibility
toward individuals seeking to secure their inalienable rights.
We also encourage China to exercise a responsible role,
especially with regard to fundamental human freedoms, as it
takes on a more global role.
This year, we are programming $19 million to promote rule
of law, civil society, human rights, and democracy in China.
The projects we fund assistant Chinese men and women who want
to promote reforms that will lead to near-term results, while
laying the foundation for a long-term structural political
transformation. These programs address some of the most serious
human rights concerns, including the need for due process, the
harassment and detention of criminal defense lawyers, and the
need to reform the reeducation-through-labor system. We support
projects to train judges, prosecutors, and lawyers in the use
of oral advocacy skills, ethics, and judicial independence.
These training programs seek not only to build skills, but also
to engage members of China's legal community in reforming their
legal system.
Through programs such as these, judges, prosecutors, and
lawyers learn about other legal systems, which can serve as a
model for legal reforms. We need to continue engaging legal
practitioners because the future direction of legal reform in
China will be determined largely by them.
A strong civil society is indispensable for a key part of a
nation governed by the rule of law. To this end, we are also
supporting projects to help non-governmental organizations
become effective advocates for their communities by training
them in advocacy skills and project management.
The State Department is also committed to raising human
rights concerns in bilateral and multilateral settings. Through
bilateral pressure, we were able to secure the release of
Rebiya Kadeer and gain China's agreement to take several
positive steps, including giving prisoners convicted of
political crimes the same rights of sentence reductions and
paroles that are available to other prisoners.
We will continue to raise concern about the lack of
democracy and respect for human rights directly with Chinese
leaders and in public comments. During Secretary Rice's most
recent trip, she raised human rights concerns, including
specific cases with Chinese leaders.
We will not shy away from pressing our human rights
concerns and urging the Chinese Government to implement
structural reforms. Chinese citizens themselves have spoken out
about the need for the rule of law. By lending our voice and
our support, we can help their voices resonate. As President
Bush said in his second inaugural address, our goal is ``to
help others find their own voice, to attain their own freedom,
and to make their own way.''
Congressman Leach, thank you for your commitment to this
goal and your work with us as we promote our policy toward
China.
I would be happy to take your questions.
[The prepared statement of Ms. Birkle appears in the
appendix.]
Representative Leach. Well, first, let me thank you for a
thoughtful summary of the State Department position and your
personal commitment to these issues.
May I just ask a couple of brief questions? Just in terms
of measuring effectiveness, what kind of capacity do you have
to assess the effectiveness of your programs? I mean, one of
the great problems we have had in so many areas of foreign aid
involving economic building projects, is to assess, after the
fact, what has happened. It is more ethereal in idea areas such
as rule of law programs.
Do you have a sense that what you are doing is helpful and
appreciated or do you have a sense that it is resented and
counterproductive? Do you have a way of measuring?
Ms. Birkle. Yes. Thank you. The Department, and my Bureau
in particular, places very stringent reporting requirements on
our grantees so we can assess and measure the accomplishments
of our programs. Just as in the technical background, grantees
are required to submit both long-term and short-term
objectives, and we hold them to a very rigorous review process
on a quarterly basis to ensure that they are meeting each of
these objectives.
You raise very good points. It is an exceptionally
challenging environment in which to do programming. I am
convinced, however, particularly in this current environment
where there is some political space, there is some opening in
legal reforms, now is our time to be engaged on these issues.
There are people in China who want to see legal reform, and we
are reaching out to them. In that sense, I think we are also
very effective.
Representative Leach. As you know, most societies prefer to
do things on their own, but there is probably no society that
has that sense more than China. So, sometimes even when an
outsider says something that might be right, it can cause
friction. Do you have that sense with the rule of law
initiatives?
Ms. Birkle. I do not. My sense is that our program
participants and our interlocutors on the ground are open to
learning about other systems and other ideas, and that they are
actually thirsty for the information that we can convey to
them. I do not sense a sense of friction.
Representative Leach. We have two areas of law. One, is
definitive. That is, societies have some levels of internal
order, and that is domestic law. Then the other area of law is
less definitive, particularly in enforcement in the
international arena. For the sake of civilization, we want to
build both, international and domestic.
Of particular relevance with regard to China, international
law is everything concerning the fields of economics, trade,
and commerce. But commercial law, in one sense, is domestic,
but in another sense we have got all of these trade agreements
and what we consider to be lack of compliance. Do you work in
this area particularly, or is your emphasis more on the
domestic side?
Ms. Birkle. It is more on the domestic side. There is
another category, actually, which is international human rights
law.
Representative Leach. Of course.
Ms. Birkle. Which, of course, they are engaged with them on
a regular bilateral basis with our human rights dialogue.
Representative Leach. So your international emphasis is on
human rights, not trade, and your domestic is on commercial,
political, and environment. Would that be a fair way of
describing it?
Ms. Birkle. Primarily, yes. We also do programming in
public advocacy and in media transparency. In that sense, there
is probably some way where we could address those issues as
well. But primarily it is domestic.
Representative Leach. When we think of environmental issues
in this country, it is often fairly esoteric. At the risk of
presumption, it is almost a set of class issues. That is, the
upper classes are concerned about ``green'' things. In the rest
of the world, it is preeminently a lower class issue because
the environment is not esoteric, it is pretty fundamental. It
has everything to do with clean air, clean water, and disposal
of waste that we look at kind of esoterically.
In eastern Europe, one has the sense that the environmental
movement was one of the great movements that proved to be
against the government in the Communist era. It took root, and
the government could not hold it down. I have a sense that, in
China, there is a much greater environmental activism going on
than we would ever have suspected, and that this is kind of a
freedom issue, as well as an environmental issue.
Is that your view of it?
Ms. Birkle. That is absolutely my view of it. I think it
is--if it is the right word--a real opportunity there. I did
not give the example of another recent protest in an industrial
city where villagers refused the construction of yet another
massively polluting plant in their city. It is a great area,
with great promise, I think, to engage workers and human rights
advocates on real fundamental issues that affect their daily
life.
Representative Leach. Yes. Well, thank you.
Madame Secretary, the circumstance is this. We are late, so
I am going to ask for the second panel to come. I want to thank
you very much, particularly on Senator Hagel's behalf.
One of the awkwardnesses, when you are a U.S. Senator,
especially one who has been drinking from this fountain that
says that one is a presidential candidate, you get people who
suddenly take up your time in unexpected ways. I apologize. He
hopes to make it, but may not be able to. But I will assure you
that I will get your testimony to him.
I might say to the next group of witnesses, the panel is
small, but we will distribute the information that you give us
rather widely. So, we appreciate your testimony. Thank you.
Ms. Birkle. Thank you very much.
Representative Leach. If I could ask the second panel to
come up and take a seat, please.
The second panel consists of Professor Jerome A. Cohen, who
is with the New York University Law School. He is an Adjunct
Senior Fellow on Asia at the Council on Foreign Relations. He
is also counsel to the distinguished law firm of Paul Weiss.
Professor Cohen is a leading expert on the Chinese legal system
and has published numerous books and articles on Chinese law.
With him is John Fuh-sheng Hsieh, who is Professor of
Political Science at the University of South Carolina. By the
way, one of my favorite anecdotes is that in America, virtually
every state university has a department or two better than
Harvard's. Your great
institution, for example, the South Carolina International
Business School, is number one in the country. So, you
represent a distinguished state university, and I welcome you
on those grounds, as well as on the grounds that you are a man
of great reputation. Professor Hsieh has served as Secretary
General of the Chinese Association of Political Science in
Taipei. He has been Chairman of the Comparative Representation
Electoral Systems Research Committee in the International
Political Science Association. He has written many books, and
articles in scholarly journals, and we appreciate your presence
today.
Our third witness is John Ohnesorge, who is Professor and
Assistant Director of East Asian Legal Studies at the
University of Wisconsin Law School, and is a fellow
Midwesterner. We think that is a credential of fine
proportions. Coming from the State of Iowa, we do not like
everybody who wears your football uniform, but your academic
departments we respect a great deal. The professor has
practiced law in South Korea and he specializes in Korean law,
comparative law, and economic development and the law. His
recent publications include, ``The Rule of Law and Economic
Development in Development States of Northeast Asia,'' and
several others that I will not mention at this time. Anyway,
welcome, Professor.
Unless you have made prior arrangements, we will proceed in
the order in which I have introduced you. Is that all right
with the three of you?
[No response.]
Then we will begin with Mr. Cohen.
STATEMENT OF JEROME A. COHEN, PROFESSOR OF LAW, NEW YORK
UNIVERSITY SCHOOL OF LAW, NEW YORK, NY
Mr. Cohen. Congressman Leach, our panel is delighted to see
you. Your longstanding, intelligent interest in China is
appreciated by those of us who labor in the vineyards of
academe.
Representative Leach. Well, thank you, sir.
Mr. Cohen. I just want to say that many of us believe that
the rule of law in China is critical and its importance has
been underestimated by the media. Every day, we read about
China's great accomplishments economically, its importance
politically, militarily, and diplomatically. But none of its
ambitions, really, will be accomplished without a legal system
commensurate with its goals.
China has made a lot of progress in the last 27 years since
Deng Xiaoping unleashed the Reform and Opening Up Policy in
1978. I was in China at that time. If you looked for the
indicia of a legal system, they were pretty hard to find. There
were very few laws and regulations relevant to anything.
They were very poor legal institutions. The courts were a
shambles. Prosecutors' offices had been abolished for 12 years,
the legal profession for 20. Legal education was only beginning
to recover from the Cultural Revolution. If you went into
bookstores and looked for books on law, there often was not
even a shelf that was relevant.
There has been a lot accomplished in the last 27 years.
China now has an enormous amount of legislation, maybe too
much. China has now adhered to the major multilateral
agreements that affect law and business in China, and human
rights, too. China has a host of bilateral agreements, whether
you talk about taxation questions or protection of foreign
investment against confiscation or other treatment of foreign
nationals.
The courts have made some progress in China. Great efforts
have been made by the Supreme People's Court to train a
suitable number of judges. Prosecutors have been restored and
they are making some progress. The legal profession now has
about 120,000 lawyers, many of them very able.
Legal education is one of the growth industries--very
prominent--in Chinese academic life, and legal publications are
very available. There are over 90 law reviews, and a huge
number of books. They have quality now. They are not just
regurgitating what the previous writers said or what the
government statute says. So, a lot has really been done.
The problem, as you know so well, is vast. You have got 1.4
billion people, a vast country, tremendous economic change. The
very success of China economically has put enormous strains on
the system. The pace of social change in China is very great.
The sense of injustice is growing among many of the people
who are increasingly literate, educated, and open to the world.
As was said by Ms. Birkle for the State Department in a very
good presentation, rights consciousness has risen rapidly in
China. This has posed an enormous problem for institutions
generally, and especially legal institutions. If you do not
want people protesting in the streets in China or rioting in
the villages, then you have to have appropriate outlets for
them. Yet the Chinese have not developed institutions,
especially legal institutions, in which the populace can be
generally confident. So that is a big problem. All this huge
effort to create a legal system is paying off, but it is paying
off at a pace that is rather slow. The legal system is
constantly trying to play catch-up with the economic
development of China, including its international business
cooperation.
Now, there are a lot of problems, of course. The courts
today, as was said earlier, are not independent institutions.
You have about 200,000 judges who have to be trained. The
educational level of these people has gone up dramatically. The
courts were staffed largely by ex-military and police officers
without legal, higher, or any education. The educational level
now shows over half of the judges in China are university
graduates, not always in law, but in something, and that helps
a lot.
But you have almost an equal number of prosecutors to
train. There are not enough lawyers. Only about 30 percent of
the criminal cases, for example, are staffed by lawyers. China
has a long way to go, as my perhaps-too-long paper
demonstrates.
Nevertheless, it has done a lot. Business with China,
between the United States and China, and between other foreign
companies and countries and China, has been really promoted by
the legal system. Business has also been an enormous stimulus
to China's legal development.
Foreign investments and the development of capital markets
have required a legal system in China. China's entry into the
WTO is having profoundly important effects in improving the
legal system. But it is all a process that is being played out.
The weakest link in the system is the criminal justice
system. A country of China's accomplishments, magnitude, and
desire for respect of the world deserves a much better criminal
justice system than it has. The plight of defendants, suspects,
and their lawyers is very dire.
Efforts are under way at the moment to revise the current
criminal procedure law. But China is sort of stuck. On the one
hand, the Chinese accept some of the principles of an adversary
system. On the other hand, they are reluctant, really, to put
them into effect. So they have to make some fundamental
decisions, including whether to put an end to the notorious
administrative sanction of reeducation-through-labor, which
allows the police to put somebody in a labor camp for three or
four years without any prosecutorial participation, not to
mention the approval of any court. That is a highly debated
issue.
Many of these issues are hot issues that you, as a
Congressman, would appreciate because the lobbying process in
China is intense. The trouble is that it is hard to get
agreement on many controversial questions. Should there be a
right to silence? Should witnesses attend court so they can be
cross-examined in criminal cases? Should defense lawyers no
longer be subject to discrimination by holding them out for
prosecution if they claim a different view of the evidence from
that of the police and prosecutors? A lot of basic questions.
On the one hand, you have the Ministry of Public Security,
the Ministry of State Security, the Ministry of Justice, the
Supreme Court, and the Procurator General's Office. They are
vying with academic experts, members of the National People's
Congress and the All China Lawyers Association. You can just
imagine what a legislative lobbying stew this is when you have
very controversial questions that involve the security of the
country. So, it is hard to get further legislation, but it is
coming.
One of the most interesting and important areas, and it was
mentioned by Ms. Birkle, is there is now a kind of proto-
constitutional law developing in China. They are just beginning
to put flesh on the bones of many of the attractive slogans or
principles in their Constitution. They are preparing to do it
through the National People's Congress Standing Committee, not
through a Supreme Court or a special constitutional court. But
they are just getting to the point now, so many years after
establishing their country, of making some machinery available
for people who want to ask the National People's Congress, for
example, is the regulation of the State Council with respect to
anything that they happen to be regulating consistent with the
Constitution?
People are beginning to get results. Not yet constitutional
decisions, but by petitioning the National People's Congress.
They have already prompted the State Council to cancel certain
regulations that are not attractive.
So, this process is just getting under way. It is being
fueled by not only international pressures, but, far more
importantly, domestic pressures. That is where a lot of the
human rights proposals are really coming from for the Chinese
people.
At the same time, people are going to court. Even though,
formally speaking, the courts are not authorized to make
constitutional decisions, certainly not ones invalidating
legislation or
administrative regulations, the fact is that courts are taking
in
decisions gradually that, for example, are enforcing equal
rights
between men and women and between outsiders and insiders in
various ways. Enforcement of anti-discrimination is coming to
the courts, and the courts are trying to rise to that
challenge. Even the Chinese Communist Party cannot ignore the
new wave of rights consciousness.
There are 70 million Party members. Being thrown out the
Party or given a lesser but still severe administrative
sanction is a devastating blow to somebody's career. Nowadays,
in most places in China, before that can be done you have to
give the person against whom the action is to be taken notice
of what it is he or she has done to offend Party discipline.
You have got to give them a hearing, a right to defend
themselves. They can have somebody who operates like a defense
lawyer. They are entitled to bring witnesses. They can cross-
examine the witnesses of the other side. In this respect, at
least, it may be better than Chinese criminal courts!
But the point is, the idea of due process, of fairness, is
catching on in China. If the Communist government is going to
continue to be seen as legitimate by its people, and especially
by the Party's own members, it has to start conforming to the
demands of due process of law.
Now, finally, I want to congratulate the Commission on
scheduling this hearing, particularly because I think the
impact of Taiwan, and even South Korea, and what is taking
place in China is significant, and can be more significant. On
all the issues I have mentioned and many more, Taiwan has gone
through relevant experience, and they are still going through
this experience. Wisely or otherwise, they have decided to
implement the adversary system rather than the original old-
style European inquisitorial system that they put into effect
under Chiang Kai-shek almost eight decades ago.
People in China need to know about this body of experience.
My recommendation would be that this Commission consider
proposing to the Congress that they include in their funding
for the Department of State money for research on Taiwan's
accomplishments and Taiwan's current struggle to develop a rule
of law. You want to know about judicial independence? Taiwan
has made remarkable progress in recent years in achieving
judicial independence. You want to know about eliminating
administrative punishments that challenge the criminal justice
system? Taiwan is going through it today. There is so much we
can learn from Taiwan.
We appreciate very much the funding that the Congress has
given through the Department of State to those of us who work
on Chinese law and train Chinese defense lawyers, judges, and
prosecutors. But I would hope in the future you would include a
recommendation that some funding go for research, not merely
training, and research that includes what Taiwan's experience
of the last 20 years has been. So, I thank you for the
opportunity and hope there will be a chance to answer your
questions.
[The prepared statement of Mr. Cohen appears in the
appendix.]
Representative Leach. Well, thank you for that thoughtful
testimony.
I want to make a quick aside. You mentioned the rights of a
person who gets thrown out of the Communist Party to try to
stay in. I am reminded of Henry David Thoreau, who, in ``Civil
Disobedience,'' suggested that he wanted to sign off the
membership rolls of any institution that he ever signed onto.
So, those are two contrasting models, one wanting to stay in a
party, one wanting to get out of anything.
Anyway, Professor Hsieh.
STATEMENT OF JOHN FUH-SHENG HSIEH, PROFESSOR OF
POLITICAL SCIENCE, UNIVERSITY OF SOUTH CAROLINA,
COLUMBIA, SC
Mr. Hsieh. Congressman Leach, my job today is to talk about
the case of Taiwan and its implications for China.
The legal system in Taiwan has been shaped by several
factors. For one thing, Taiwan is a Confucian society. In
Confucian culture, stability is the paramount concern, and the
moral examples set by superiors in interpersonal relationships
are often considered more effective than legal codes in
maintaining social and political order. Such an attitude has
surely been significantly changed over the years as a result of
exchanges between Taiwan and the outside world. However, there
are still traces of Confucian culture in Taiwan.
For instance, in a series of nationwide surveys I have
personally been involved, respondents were asked if they had to
make a tradeoff between, say, political reform and stability,
which one they preferred. An overwhelming majority of
respondents in Taiwan chose stability instead of political
reform. This shows some legacy of Confucian culture on the
island.
The first major change in Taiwan's legal system came with
the Japanese in the late nineteenth and early twentieth century
after Taiwan was ceded to Japan by the Qing Dynasty of China.
The Japanese set up courts and brought in the Japanese legal
codes as part of the colonial administration.
In 1949, when the Kuomintang [Nationalist Party, KMT] fled
to Taiwan after being defeated by the Chinese Communists on the
mainland, it also brought with it many laws it drafted but only
partially implemented on the mainland. Indeed, many of these
laws remain the backbone of Taiwan's current legal system,
notably the Constitution, which was drafted in 1946 and took
effect in 1947, the civil law effective in 1929 to 1931, and
the criminal law effective from 1928.
To be sure, the first four decades of the KMT rule were not
democratic, and the laws were often subject to the government's
or the party's intervention. It was only after Taiwan became
democratic that the independence of the judiciary has been
better
respected.
Yet, even today, instances of administrative intervention
can be seen from time to time, and public officials may bypass
or violate the laws, but cannot easily get away with that,
showing that Taiwan's legal system has improved a great deal,
but has not really lived up to the expectations.
How much did Taiwan's legal system contribute to its
democratic transition? Probably not much. There are many other
factors which may be more salient in Taiwan's democratization
process.
For example, the popular support received by the opposition
movement among the native Taiwanese as a result of their long
exclusion from the political process was certainly a very
important factor forcing the KMT Government, which was
dominated by the minority mainlanders, to make concessions.
Other factors such as cultural change and the emergence of
a civil society as a result of the remarkable economic
development have all paved the way for reshaping Taiwan's
political system. The pressure from other countries, especially
the United States, also, to some degree, facilitated Taiwan's
political change.
Although the legal system may not directly contribute to
Taiwan's democratic transition, it is undoubtedly a very
important factor affecting the phase of democratic
consolidation. Indeed, a sound legal system supported by an
appropriate legal culture is one of the most important
guarantees for the functioning of a liberal democracy.
Yes, Taiwan's legal system has greatly improved and its
legal culture is now more in line with the Western notions of
laws. Nevertheless, there is still room for improvement. For
example, a lot of people, including many powerful politicians,
may pay lip service to the notion of the rule of law, but it is
doubtful how firmly rooted it is. Indeed, as these politicians
act in clear violation of the laws, their acts may be dismissed
as, say, election gimmicks or whatever, and forgotten quickly
by the public. The recent stalemate in the political process
between the executive and the legislative branches can also be
partly attributed to the lack of true respect for laws on the
part of many politicians in Taiwan.
Now, can Taiwan's experiences be exported to China?
Probably not much, I think. The development in China,
particularly since 1949, was very different from that in
Taiwan. The infusion of Communism--or more precisely Maoist
Communism--to a large extent, changed the very notion of laws
and democracy.
Although Deng Xiaoping's reform revitalized some Western
legal practices to serve the needs of economic reform and also
to prevent the recurrence of the Cultural Revolution type of
chaos, the country still has a long way to go before a well-
functioning judicial system--not to mention a liberal
democracy--can be established in China.
Thank you.
[The prepared statement of Mr. Hsieh appears in the
appendix.]
Representative Leach. Thank you, Mr. Hsieh.
Professor Ohnesorge.
STATEMENT OF JOHN K. OHNESORGE, PROFESSOR OF LAW, UNIVERSITY OF
WISCONSIN SCHOOL OF LAW, MADISON, WI
Mr. Ohnesorge. Thank you, Mr. Chairman. First of all, I
would like to thank you, the Commission, and the Commission
staff for inviting me here today to participate in this event.
I should say that, as a transplanted Minnesotan, I share
your concerns about Bucky Badger and the dominance of the
football team at Wisconsin. But I am not sure that makes you
feel any better, because you may not feel any better about the
Gophers than you do about the Badgers.
Turning to today's topic, which is Korea's experience of
law and democratic transition, in my view the Korean experience
gives us only limited cause for optimism when we imagine
China's future.
Korea was essentially authoritarian from 1948 to 1987. And
I should say, like Taiwan, since 1987, Korea has been
undergoing a rapid transformation into a much more law governed
society, and that process is well worth studying. But that is
not the period I am focusing on here today. I share Jerry
Cohen's interest in those post-transition developments in Korea
as possible guideposts for China. The authoritarian governments
in Korea, however, abused human rights in ways reminiscent of
what one hears about in China today. While I would never say
that the abuses in Korea were of the scale that have taken
place in China, the mechanisms under which they arose were
sometimes quite similar. So the things that I will talk about
here now would be familiar to anyone who has been paying
attention to the law reform debates in China.
For example, due to the institutional weaknesses of the
Korean courts, authoritarian Korea's various constitutions
functioned more like policy statements than as fundamental law.
They were changed by the executive branch at times and they
really did not function as fundamental law because there was no
court that was going to enforce them against the executive
branch. Administrative law hardly functioned for decades,
meaning that government agencies were very weakly constrained
by judicial review. They were constrained perhaps internally
through the laws that created them and governed them
internally, but the courts, as a separate power to check them,
really were not available using administrative law. Property
rights were enshrined in the various constitutions and in the
law, as is more and more the case in China today, but remained
ultimately contingent upon maintaining political favor. So at
times, when business groups got out of line in view of the
government, they were destroyed by the government and their
assets were redistributed.
The executive thus enjoyed enormous discretion when dealing
with the private sector. And while such discretion was part of
the authoritarian control system, it was also at the heart of
the interventionist industrial policy which Korea practiced as
it grew into an economic superpower. I should say that at times
Americans who study economic development have been rather
enamored of the discretion that the Korean state had to engage
in industrial policy and planning, but it is a double-edged
sword. The down side of unreviewable executive discretion is
that it can be abused, of course, and I see similarities in
China's case today. Some of the industrial policy tools that
China engages in now are very similar to things that South
Korea did, and I think they depend in some ways on a freedom of
the executive from judicial control, which can be a serious
problem.
With respect to civil society, the Korean Governments
worked hard to neutralize organized labor by, among other
things, demanding that unions belong to a single government-
dominated federation. Other elements of civil society, such as
religious groups or business interests, were also subject to
severe pressures not to challenge the government's basic
monopoly on power. The Korean CIA, an enormous organization
relative to Korea's population, was a primary tool for this
government penetration of civil society, insinuating itself
into churches, unions, newspapers, student organizations and
workplaces far beyond what I think most of us would understand
as necessary. I say this even given the extremely serious
security threat from North Korea, which I would not understate
at all. The criminal law was another important tool of
authoritarian control, with vaguely worded special statues and
special courts used to suppress dissent. Extra-legal means were
also regularly used to silence the government's critics,
including, at times, torture and extra-legal detentions.
As I said at the outset, my reading of the Korean
experience suggests to me that reform in China is going to be a
very long, slow process. First of all, Korea's poor human
rights record continued despite the fact that the country had
become an economic powerhouse with an essentially capitalist
economy. This suggests that even a very successful market
economy cannot be relied upon to automatically unleash social
forces potent enough to bring about democracy or the rule of
law. In other words, I fear that this kind of authoritarian
capitalism, which I think is where China is heading, or where
certain people in China are trying to steer the country, may be
a fairly stable system. Not everybody believes that, of course.
There are arguments that, with economic growth and the growth
of markets, you get social forces that demand the rule of law,
demand democracy, and you get kind of a smooth, inevitable
transition. I am less sanguine about that.
Nor is the technical development of law and legal
institutions necessarily going to lead directly to the sorts of
reforms that many hope for in China. In authoritarian Korea
there was a technically complete, coherent system of law. Many
students majored in law at university, and the few who became
judges, prosecutors, or private practitioners were very well-
educated and very talented. At various times some of Korea's
legal professionals did resist authoritarianism, but most chose
instead to work within a system that rewarded them very well,
but demanded obedience.
A further cause for concern is that in Korea's case there
were structural limits on the powers of the executive that are
not present in the Chinese context, one of which was the
relationship with the United States. To put it simply, China is
truly sovereign in a way that Korea was not. Now, the influence
of the United States on authoritarianism in Korea was a very
complicated story, but there was at least a kind of constant
pressure from the United States to perform better. In addition,
although Korean dictators tried hard to suppress civil society,
they faced obstacles that I do not think China faces. Korea's
Christian churches, Catholic and Protestant, and often with
support from churches in the United States, were pillars of
resistance that the governments were never able to control, and
the student movement was an active source of resistance for
decades. Labor unions, likewise, fought to organize independent
unions and maintained consistent pressure for democratization.
In China today, such forces seem weaker than they were in
Korea, even at the height of its authoritarianism. If you go
back and you read the history of the democracy movement in
Korea, the churches were very much at the center of it and
played a big role. The government tried its best to suppress
them from time to time, but it was really difficult for the
government to do that.
Despite these reasons for concern, there are also grounds
for
optimism. First, human rights, in many areas, can be improved
within an authoritarian capitalist framework, which is where I
think China is heading, and one could look at improvements to
the criminal law, criminal procedure, and administrative law as
the kinds of improvements to legal performance that may be
consistent still with authoritarianism, in a sense, but a law-
governed authoritarianism. So not Maoism, not governance
through ideological campaigns, or through unchecked discretion,
but still at best a glass half full. It probably stops when it
comes to the level of challenging government authority.
Second, globalization and new information technologies
clearly make it much harder to control China's rising civil
society than was the case in authoritarian Korea. Third, the
international economic order now places demands upon national
legal systems that are more exacting than the demands placed
upon authoritarian Korea. China is more integrated into the
international economic order than Korea was. Thus, while China
pursues an industrial policy that is similar in some ways to
what Korea did in its developmental era, I think that China is
under more pressure now from the international community to go
to a more rules-based governance order. Authoritarian Korea was
brought into the General Agreement on Tariffs and Trade [GATT],
but the GATT system was much less demanding than the WTO
system. Also, during the cold war, the pressures on trade were
always balanced off against pressures on security. I think the
pressures on China today are much more focused on improving the
legal system.
Finally, and most important, there are many people in China
today, both inside and outside the government, who are working
for reform. Therefore, like Professor Cohen, I believe in
engagement with China's law reform efforts, even if change is
likely to be slow and incremental.
Thank you very much.
[The prepared statement of Mr. Ohnesorge appears in the
appendix.]
Representative Leach. Thank you very much. Let me just
begin with one Korea/China question relating to international
law.
As you know, there is the tragedy of the North Korean
refugees in China, and China is a party to international
conventions relating to refugees. Is there any prospect that
China will be more sensitive to the rule of law in this regard?
Mr. Cohen. I take it what you are referring to is the
question of whether China's attention might be more focused on
its obligations in treating migrants from North Korea who come
into China and who claim to be refugees entitled to the
protections of the relevant international conventions for the
protection of refugees rather than mere economic migrants.
I, too, sympathize very much with the plight of those
people. I feel many of them, although perhaps motivated by
economic motives as well as desire for freedom, should be
regarded as refugees, political refugees.
The difficulty is that in a system as highly repressive as
the North Korean regime's, virtually anybody could claim to be
a political refugee. Once they leave the country, if sent back,
they would be subjected to severe sanction. So, I think the
overwhelming number of these people should qualify for refugee
treatment.
The problem, of course, is the context and the political
sensitivities of dealing with North Korea, not only on this
question, but the whole question of its legitimacy, its nuclear
power, et cetera. China, being on the North's doorstep, is
extremely sensitive to these issues.
There is also a huge Chinese population of Korean descent
that speaks the Korean language and that is very close to Korea
in terms of geography, and China's leaders worry very much
about the influence of adjacent countries on their minority
populations.
Of course, this is not a typical question for judging the
Chinese domestic legal system and where it is likely to make a
transition to, but it is among those important questions of
China's attitude toward international law.
I think the relevant international organizations, as well
as governments, have to lean on China a little harder on this.
Yet they find it difficult to do so because of our government's
reliance on China, particularly with respect to getting the
North Koreans to the bargaining table, as they now once again
are in Beijing in the Six Party talks. So, it is part of a
broader context.
Representative Leach. Let me raise one other international
law question. We are, in the next few days, going to be working
in the Congress on a trade agreement, this one with so-called
CAFTA countries and the Dominican Republic.
There is a lot of angst about trade agreements in general
that is tied into the CAFTA debate because there is a sense
that agreements that may or may not be exactly fair to both
sides are not being implemented equally on both sides, and
particularly there is concern, for example, in countries such
as China that basic law is not being abided by. Do you sense
that the Chinese are making
legitimate efforts to try to abide by WTO rules, try to abide
by intellectual property kinds of standards, or do you think
this is a hopeless circumstance, that China will just go its
direction, whatever it perceives to be in its short-term
national interest?
Mr. Cohen. You are raising a very complex question, but one
of huge, immediate practical importance. I like the Chinese
phrase, ``xi yao yige guocheng,'' which could be liberally
translated as, ``Rome wasn't built in a day.'' Everything
requires a process.
China's compliance process has been under way for at least
six or seven years, starting even well before it entered the
WTO. It has been revising its legal system and its
administrative practices in order to comply with the demands of
entry into the WTO. This has had a profound effect and so we
have seen a lot of effort by the central government.
The problem is that although China does not have a Federal
system like ours, the Chinese unitary system, in practice, has
many areas where it is the local authorities who have
significant power, especially with respect to a lot of
questions relating to trade, technology transfer, and
investment. Beijing's writ does not run as effectively outside
of Beijing as the central government would like, unless you are
talking about cases like the control of the Falun Gong
``religious cult,'' as they call it, or control of democratic
activists, matters that the Chinese Government, rightly or
wrongly, thinks threaten its security.
The central government does not allocate sufficient
resources in terms of money, people, or attention, to many of
its other obligations. They have a hard time controlling their
own securities markets. They have a hard time controlling
environmental pollution. They have a hard time protecting
intellectual property, according to their international
obligations and domestic laws. They are trying, but not too
effectively. This involves not only central-local
tensions and problems, and regional questions, it also involves
taxation. China has a weak tax system. The central government
does not get enough money out of that tax system, therefore,
their allocation of resources in implementing their commitments
is affected by that.
There are a host of factors here, but I think the answer is
that the Chinese Government is aware of its obligations. It is
taking steps. Many of those steps are beginning to be
effective. The problems are huge.
Congress is understandably impatient. You do not get these
reforms by Congressional resolution or decree. Outsiders can
only stimulate so much, and the pressures have to be generated
internally.
The fact is that these pressures are growing. In China, the
pressure for intellectual property protection is growing from
domestic demands as their companies--as we have seen lately--
are beginning to go global. As they need to invest more in
creativity, in
research, they want to protect the fruit of that research and
creativity.
Of course, China is a huge country and conditions vary in
various parts of the country. There is also a very delicate
political situation. Although the Chinese Government has
accomplished an amazing transformation of betterment of
people's conditions for perhaps two-thirds of the population,
and that is not to be underestimated, the fact is, people are
living in a political tinderbox.
There are so many tensions, so many frustrations in China,
rural and urban. Of course, what is fueling this, in part, is
not only rights consciousness, but this growing gap between
rich and poor. China, now, has one of the largest gaps in the
world between the rich and the poor. Chinese people have a
strong sense of resentment. They suffer, to as great an extent
as any people, from the jealousies that people have when they
see some are really using their political connections unfairly
to profit disproportionately. This is not pure economic private
development, but a lot of this richness, this new class that is
created, comes from conspiring with local governments to
achieve wealth, and this creates resentments,
understandably.
So, this is a very complex stew here. But I think the
answer is, China is doing quite a lot--not enough, but quite a
lot--and I do not think the Congress should get unduly
emotional about it, but we need to keep the pressure on.
Representative Leach. Well, let me make several comments
about this point.
One, if we go to Taiwan for a second, one of the least-
noticed aspects of Taiwan that I think is one of the most
extraordinary, is that, of all the countries that have gone
through rapid development, I think Taiwan has had the least
cleavage between the rich and the poor. There are very wealthy
Taiwanese, but I do not know of any society where the so-called
``lifting of all boats'' has more generally occurred.
Part of it was against a background in which, when the
mainlanders took over under the KMT, they certainly very
rigorously controlled the political system, but the native
Taiwanese controlled the land. Many native Taiwanese did well
economically, even though they had very few political rights.
I want to mention as an anecdote--and this may seem odd,
but it is very meaningful to me--my first professional job in
life, I was a young Foreign Service officer. Right out of the
Foreign Service Institute, I was on a three-week assignment to
help a department that had gotten behind and write a background
paper for an international conference to be held in Vienna on
international road signs and signals. I wrote this up and I
pointed out that the Europeans wanted us to adopt their road
signs and signals, and we had our own, and to change them would
be very expensive in the United States. In any regard, it was
the province of state governments. I wrote this lengthy paper
about this topic, and I got called into the Legal Adviser's
office.
The Legal Adviser said to me, ``Young man, you must
realize, in the United States, the national government is
sovereign. We can negotiate anything we want to do and the
states have to follow. We are sovereign.'' He said, ``As a
practical reason, you might not want to put this burden on the
states, but if we wanted to, we could.''
So, one of the dilemmas with China is that in many areas,
the government operates with complete sovereignty. In some
areas, they seem to not have full sovereignty over their own
society. So when you say local governments have to implement
national treaties, it is as if they are imperfectly sovereign
on enforcement.
It is a dilemma if one wants to be respectful of everything
that has occurred in China that is progressive, and yet, at the
same time, one's country, one's constituents are negatively
affected by lack of sovereign implementation of law, because,
one might say, it is the jurisdiction of a regional government
or a city. That is very awkward, because you cannot enter into
treaties with people that do not have sovereignty. So,
sovereignty is a very important issue. Like everything, is the
glass half full or half empty? In so many ways, what China is
doing is thoroughly impressive. In other regards, it is very
awkward.
One's sense is that when the central government really
cares about something, such as the Falun Gong movement or
whatever, it can put its foot down. When it is fought, it
cannot, so that is difficult.
I will just end with, years ago, the Chinese Ambassador was
leaving town and there was a lot of debating of China's
scholars about China: would it become more decentralized, more
centralized, et cetera? I asked this distinguished Ambassador
his view of that. He said, ``Well, just remember, Congressman,
in China, the central government has a hard time taxing,''--
just the point that you made--``and that makes it very
difficult for the central government to control the regions as
much as an outsider might wish, or as much as the government
might wish.'' So, that tax issue is a central one, but it is
not for us, particularly, to tell China how to tax. That is for
China to devise in its own right.
Mr. Cohen. And it is not good enough for them simply,
decade after decade, to use that as an excuse because, if it is
an important priority, the leaders of the Chinese Communist
Party know how to enforce their will on the country, through
the media, and, if necessary, through stronger measures. So,
they should be strengthening their own tax system for their own
purposes, but also in order to help them fulfill their
international obligations.
But we cannot simply focus on China and have blinders on
about the rest of the world's implementation of international
agreements, including our own record. Our government has been
notorious, on occasion, for thumbing its nose at international
court judgments or paying no attention to certain international
agreements. We do not implement, for example, very effectively,
our obligation when a state prosecutor locks up a foreign
national. Generally, we have a commitment to notify the
government of that foreign national that the person is being
detained, and perhaps being charged with a capital crime. We
have often ignored that. Our record is more disgraceful than
China's on that particular point.
I have always liked what Robert Burns said, ``Oh, would
some Power, the gift to give us, to see ourselves as others see
us.'' That does not mean we are on the same plane as China, but
it ought to at least leaven our concern with China's behavior
with some consideration of the practical problems that lead to
our own failures to observe what the international system
demands. So, I realize that is not a popular view in the
Congress, but I am not a Member of Congress, I am a citizen.
Mr. Ohnesorge. Mr. Chairman, could I interject on this
issue of intellectual property rights, and industrial policy,
more broadly?
Representative Leach. Of course.
Mr. Ohnesorge. I was in private practice in Seoul from 1990
to 1994, representing foreign clients and Korean clients. In
the Korean case, unlike in China, there was no question that
the Korean Government was firmly in control of the provinces.
There really are no provinces, to speak of, that matter for
Korean governance. Yet Korea still did not really enforce
intellectual property rights, and they did not do it, I think,
because they did not view it as being in their interests. They
were behind the rest of the world in basically every
technology, and they were committed to a kind of mercantilist,
nationalist industrial policy, building national champion
companies rather than allowing foreign companies to come in and
participate and become major parts of their economy. So I
always viewed the weak intellectual property regime in Korea as
a kind of a negative industrial policy, and I did not think
that there was any point in letting the Koreans off the hook as
being culturally unaware of intellectual property. They just
did not put resources into it. So the question for me, as a
Korea watcher, is to what extent China is following the same
kind of nationalist/mercantilist industrial policy that Korea
followed, which I think is similar to Taiwan's and similar to
Japan's? It is not clear at all. I think there is great debate
on this.
China appears much more open to, for example, letting the
foreign auto companies come in and become dominant players in
the Chinese auto market. The development of capital markets in
China, I think, is ahead of where they were in Korea at a
similar stage. Korea had a much more bank-dominated financial
system. And because the government controlled the banks, the
government could use that control to really control the
political economy.
Mr. Cohen. China has been far more open to foreign direct
investment at a comparable stage of development than any of the
other North Asian countries. Of course, it is in its interest
to do that, but we did not expect that in 1979. We did not know
how important they would regard private capital, joint
ventures, and all that. They created a legal system to attract
it. Every year, they are opening their markets further in order
to allow us to invest more, which also creates problems for
your constituents, of course, because jobs are moving over
there.
I would not be surprised if China's reaction to the Unocal
problem might not only be to cut down their purchases of U.S.
treasury bonds, but also begin to contemplate allowing us to
purchase minority interests in their state-owned oil companies,
just like we are purchasing minority interests in many other
state-owned Chinese enterprises. I think they are under
pressure to go that route.
They have gone far further than Japan or South Korea, our
close allies, military as well as political, and we ought to
encourage that process and not deter the process of opening by
beginning to take sanctions against them that I think would be
not justified at this stage.
Representative Leach. Your wise words are noted.
We are all looking at long-term relations between Taiwan
and China. In one sense, returning to the sovereignty issue,
that is the central question that the Chinese on the mainland
are looking at the Taiwanese issue in relationship to.
But is there any sense that the mainland is looking at
Taiwan as a model? Because there are many things that have
happened in Taiwan that are truly impressive, in a
democratization, as well as rule of law, as well as in an
economic development way.
But you have no conversation about the Taiwan model for
China. The only conversation I hear is the question of the
legal status of Taiwan vis-a-vis the mainland.
Mr. Hsieh. I think the Chinese did look at Taiwan as a
model in some fields, for example, economic development. In
fact, a number of very important architects of Taiwan's
economic development have visited China and given advice to the
top officials of China.
When China tries to rebuild their legal system, they have
also looked at the situation in Taiwan since both sides share a
common heritage. But those are probably the things we can talk
about. If you are asking whether China will look at Taiwan as a
model for democracy, the answer will be no. The Chinese leaders
may prefer cases like Singapore. That is the case they are
trying to emulate rather than Taiwan.
Mr. Cohen. Or Japan, or other one-party states,
effectively, where you have a formal democratic system, but it
leads to no change in the dominant political elite. I agree
with that.
Mr. Ohnesorge. If I could interject. Again, in Taiwan,
there is a great deal of legal exchange going on between China
and Taiwan that people do not pay sufficient attention to.
There are many exchanges now between Taiwanese law faculties
and mainland law faculties. There are delegations that go back
and forth each way. People read each other's journals. People
go to conferences together. It is absolutely not the case that
Chinese legal academics and law drafters are not paying close
attention to Taiwan. They are. I think that is very important.
I think that could be very beneficial, both to the Chinese in
developing their legal system, but also for cross-straits
relations. And maybe it is better that it is not studied,
because then it can just go on the way it is going, which I
think is very well.
Mr. Cohen. I think that exaggerates the situation quite a
lot.
Representative Leach. Did you want to amplify that?
Mr. Cohen. Yes. There are many barriers to interchanges
between law reformers on the mainland and those in Taiwan,
although they do have occasional meetings, sometimes on a very
big scale so that there is no real opportunity for significant
cooperation. But I know there are problems in the fields that I
work in. For example, I arranged a meeting last February, under
the auspices of NYU Law School and the Council on Foreign
Relations, for experts on criminal justice; these people had
never met before. We had to do it in New York. Even there, the
Chinese Government made it difficult for anybody who worked for
their official agencies to attend that conference. We could
only get people who happened to be in this country, plus
academics. The Chinese want more such meetings because they are
not free to invite the Taiwanese, and it is very difficult for
them to go to Taiwan and have meetings, even in Hong Kong, on
sensitive political subjects such as we are talking about
today: the rule of law, the rights of defense counsel, the
adversary system. Both sides want our help in bringing them
together. I think we should do more.
But the odd fact, Mr. Leach, is you will remember the
period in the 1970s and even earlier when the Taiwanese
Government, under Chiang Kai-shek, used to trumpet that it was
``Free China.'' Supposedly, it had the rule of law, in contrast
to those ``bandits'' on the mainland. That was sheer nonsense,
but the government beat the drums because they knew that would
sell in Washington. It was totally false.
Today, Taiwan has quite a free government. They have a real
product to sell. They have an impressive, growing rule of law,
but they are doing very little to advertise it. There are not
many English language articles about Taiwan's legal
accomplishments. Very little is known about that. Yet I think
it is very important because, on every one of these questions,
Taiwan is a kind of Chinese laboratory. Of course, Chinese are
interested, on the mainland, in what takes place in Europe, the
United States, and God-knows-where-else. But they know that
Taiwan is China. Even President Chen Shui-bian has said, ``we
are all people of Chinese culture.'' They may not be Chinese
nationals in his eyes, but he does not deny they are Chinese in
origin.
In a Chinese political environment, as Professor Hsieh's
remarks show, the Taiwanese have achieved changes that no other
Chinese environment, including Singapore, has produced in
moving toward an independent judiciary and a genuine rule of
law.
I would supplement Professor Hsieh's paper by saying I
think a careful look at the role of legal institutions will
show that they have played an important role in Taiwan's
democratization, and he should take account of, for example,
Taiwan's constitutional court. That court has been an activist
court that has invalidated many legislative and administrative
acts and has had a big impact on opening up the political
process.
That is an exciting thing. Maybe Taiwan's judges are
becoming too activist for a democratic system. Korea's
constitutional court raises a similar kind of question because
they, too, unlike Japan's Supreme Court, have been very active.
Taiwan is a Confucian society that is adapting under various
internal and external pressures to construct something we would
have to recognize as an impressive rule of law.
Yet the Taiwanese Government ought to be doing more to tell
the world about it. But we, in the meantime, ought to be
learning as much as we can about Taiwan's legal progress,
because what we are engaged in is a study not just of Taiwan,
but of the potential legal rights of 1.4 billion people. That
is one of the biggest legal challenges in the world.
Representative Leach. Well, I appreciate this. I apologize,
we are going to have to bring this dialogue to an end. I might
say that the other model of Taiwan that is very impressive, is
where Chiang Kai-shek was of the political right, his
organizational model of party control was very similar to the
Communist Party of the Soviet Union, so the KMT was modeled
similarly, and they changed.
Mr. Cohen. They both learned from Lenin.
Representative Leach. That is true.
In addition, the current president of Taiwan, Chen Shui-
bian, was a lawyer who represented people who were in jail who
are now in his government. That is a fairly impressive
circumstance, and one for which I think the Taiwanese are to be
commended.
I am reminded of a contrast, because you referenced
Confucius. He argued kind of a Golden Rule in the negative,
that is, ``do not do unto others what you would not have them
do unto you,'' which is kind of a less assertive Golden Rule.
In the Christian-Judeo tradition, we are more assertive in our
views, which is partly the implication of this Commission. That
is, this Commission is set up to look at, in an intrusive way,
another society.
I would only say that it is important that, as we make
comments, it is clear that any commentary we make is intended
to be constructive for the good of the Chinese people, not for
some sort of acerbic reasons. We have to be very careful about
not talking ourselves into conflict.
So, one of the things that is very impressive about this
commentary today of yours, is that the constructive element,
that one is assessing a system and how to improve it, is all
for the good of the Chinese people and has nothing to do with
what the American's strategic interests might or might not be.
I am very appreciative of your scholarship and your
contributions. Again, I would stress, without objection, your
full statements will be put in the record and circulated. Thank
you all very much.
[The prepared statement of Senator Hagel appears in the
appendix.]
Representative Leach. The hearing is adjourned.
[Whereupon, at 3:20 p.m. the hearing was concluded.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Gretchen Birkle
july 26, 2005
Chairman Hagel, Commissioners, thank you for holding this important
hearing, and for your excellent work. I am delighted to be here today
to testify before the Congressional-Executive Commission on China.
The theme of my testimony today--the rule of law in China--is of
great interest and importance to the State Department, especially the
Bureau of Democracy, Human Rights and Labor; Secretary Rice spoke about
it during her recent visit to China on July 10. I appreciate this
opportunity to provide our assessment of the current rule of law and
human rights situation in China.
Since the grim last days of the Cultural Revolution when
courthouses and law schools were closed and a handful of leaders
arbitrarily exercised power, China has made some progress toward
modernizing the legal system. But progress toward true rule of law has
been limited. The rule of law means more than laws on the books and
open courthouses. It requires independent institutions capable of
dispensing justice fairly, transparently, and consistently, and it
requires political rulers willing to submit themselves and their
authority to the law, just as all other citizens. China has passed
laws, opened law schools, established examination requirements for
judges, and expanded legal aid. However, these changes are not enough
to establish the rule of law. These kinds of actions must be followed
by the creation of an independent judiciary.
Chinese authorities use the law to rule. Human rights defenders,
democracy activists, and those expressing views that challenge the
party's control are often convicted and jailed on trumped up charges.
The case of Uighur businesswoman and activist Rebiya Kadeer is
illustrative of the Chinese government's use of the law to repress
those perceived as a threat to power. In 1999, Ms. Kadeer was arrested
on her way to meet with U.S. Congressional staff to discuss human
rights in China. Ms. Kadeer was convicted of ``providing secret
information to foreigners,'' specifically newspaper articles she had
sent to her husband in the United States. After spending more than five
years in prison Ms. Kadeer was released last year in part due to U.S.
Government and international pressure. But many other prisoners of
conscience remain behind bars.
China's use of the law to repress is not limited to members of any
one group. In another example, Hada, an ethnic Mongolian, has been in
prison since 1995 for his peaceful political activities, including
writing articles and books on political theory and Mongolian language
and culture, and organizing the South Mongolian Democratic League, an
organization seeking to promote and preserve Mongolian language,
history and culture in Inner Mongolia and to strive for the civil and
political rights of Mongolians in China.
The Chinese Government has also used the legal system to control
and regulate religious and spiritual activities. For instance, in
October 2003, Beijing-based house church Christian Liu Fenggang was
detained in Zhejiang Province, while conducting an investigation into
reports of church demolitions and the detention of religious leaders.
In August 2004, Liu was convicted on charges of disclosing state
secrets and sentenced to three years in prison. Ms. Kadeer, Mr. Hada,
and Mr. Liu's cases are three prominent examples of the Chinese
government's use of the legal system to restrict freedom of expression
and imprison those it feels threatened by. In China, law is an
instrument of the government, but not yet a mechanism to protect the
people.
Freedom and legal reforms are urgently needed in China, and wanted
by the Chinese people. Last month, the international media reported on
a land dispute between peasants and local officials in Shengyou
village, Hebei province. According to media reports, when the peasants
of Shengyou village defied orders to surrender their land to local
officials, the officials hired hundreds of armed men to attack the
villages. A violent clash resulted that left six farmers dead and as
many as 100 others seriously injured. On June 3, there was also a labor
incident in Guangzhou province involving several hundred anti-riot
police firing tear gas against a group of 3,000 workers. As the workers
pelted cars and buses with rocks and bricks, they chanted demands for
higher pay. The workers, lacking independent labor representatives or a
means to resolve a compensation dispute, turned to protest. China has
experienced tremendous economic progress over the past 20 years, but in
order to achieve sustainable internal development and integration into
the international community, we encourage China to develop a legal
system that protects property rights and that Chinese citizens trust
and utilize to resolve disputes. China's nascent legal system is not
effective in providing meaningful remediation, which further
contributes to social unrest.
There are signs, however, that Chinese citizens' rights
consciousness is increasing and they increasingly expect the legal
system to provide justice. Several stories of wrongful executions of
individuals whose trials did not meet international human rights
standards resulted in a public outcry on the need for reform of China's
criminal justice system. Yet the problems are manifest. Many defendants
have been tried without adequate legal representation. Same day
executions, which do not allow for full due process, are not uncommon,
though some in the Government recognize the need for a more deliberate
review process. Coerced confessions, lack of defense counsel, law
enforcement manipulation of procedural rules, pervasive presumption of
guilt by law enforcers, judges, and the public, and extra-judicial
influences on courts continues to undermine the fairness and
credibility of the criminal process in China.
Equally troubling is the intimidation, detention and arrest of
those seeking to use the law to secure the freedom of Chinese citizens.
Defense lawyers in China are coming under increasing pressure,
especially those that use the legal system to protect the rights of
fellow citizens. Lawyers representing activists, journalists, Falun
Gong practitioners and others perceived to be a threat to Government
power have been harassed, intimidated and detained.
In March 2004, the National People's Congress amended China's
constitution to include the protection of human rights. While the
passage of this amendment is welcome news, it will only become truly
meaningful and effective if it results in genuine reform and protection
of the rights of the people. Again, provision of constitutional rights
requires strong and independent legal institutions capable of upholding
the constitution. As President Bush said, ``All democracies need an
independent judiciary to guarantee rule of law and assure impartial
justice for all citizens.'' The Chinese Government needs to make these
words more than words on paper. They need to institutionalize this
Constitutional amendment and implement steps to create the legal
mechanisms that would protect rights.
President Bush has made the promotion of freedom and democracy the
cornerstone of U.S. foreign policy. This principle guides decisions
about the character of our foreign assistance and allocation of
resources.
Through a Congressional appropriation, the State Department is
funding rule of law programs. We are actively engaged in promoting the
rule of law in China through dialogue, programs, and multilateral fora.
As the President said we must help other countries ``build free
institutions that will protect their liberty and extend it to future
generations.'' We take seriously our responsibility toward individuals
seeking to secure their inalienable rights seriously. We also encourage
China to exercise a responsible role, especially with regard to
fundamental human freedoms, as it takes on a more global role.
We support Chinese citizens working to secure their own freedom,
and freedom for their fellow citizens, including freedom of speech,
assembly, press, and religion. We particularly support human rights
defenders, democracy activists, independent journalists and those
seeking legal reform. Through our rule of law program the United States
is able to support reform-minded Chinese and their efforts to undertake
structural reforms that promise increased fairness, transparency, and
rights protection in the legal and political spheres. As Secretary Rice
said, ``People choose democracy freely. And successful reform is always
homegrown.'' It is our job to amplify the voices of these people and to
assist them as they seek to build the kinds of institutions that will
deliver lasting freedom.
This year we are programming $19 million to promote rule of law,
civil society, human rights and democracy in China. The projects we
fund assist Chinese men and women who want to promote reforms that will
lead to near-term results, while laying the foundation for longer-term
structural political transformation. These programs address some of the
most serious human rights concerns, including the need for due process,
the harassment and detention of criminal defense lawyers, and the need
to reform the reeducation-through-labor system. We support projects to
train judges, prosecutors and lawyers in the use of oral advocacy
skills, ethics, and judicial independence. These training programs seek
not only to build skills but also to engage members of China's legal
community in reforming their legal system. Through programs like these,
judges, prosecutors, and lawyers, learn about other legal systems,
which can serve as a model for legal reforms. We need to continue
engaging legal practitioners because the future direction of legal
reform in China will be determined largely by them. These programs are
already having an impact, but there is still more that we can and
should do.
A strong civil society is indispensable for a key part of a nation
governed by the rule of law. To this end, we are also supporting
projects to help non-governmental organizations become effective
advocates for their communities by training them in advocacy skills and
project management. Some of these advocates seek to protect the rights
of migrant workers, women, children and consumers. We also support
programs aimed at improving public participation through elections and
public hearings. Giving the Chinese people a greater voice is crucial
to building a future China in which human potential is fully realized.
The State Department is also committed to raising human rights
concerns in bilateral and multilateral settings. Through bilateral
pressure, we were able to secure the release of Rebiya Kadeer and gain
China's agreement to take several positive steps including: giving
prisoners convicted of political crimes the same right to sentence
reductions and paroles that are available to other prisoners, agreeing
to host a visit by the Special Rapporteur on Torture, issuing a public
statement that clarifies that religious education of minors is
consistent with Chinese law and policy, agreeing to open an ICRC office
by the end of July 2005, issuing an invitation to the Special
Rapporteur on Religious Intolerance and agreeing to host a visit by the
US Commission on International Religious Freedom.
We will continue to raise concern about the lack of democracy and
respect for human rights directly with Chinese leaders and in public
comments. During Secretary Rice's most recent trip, she raised human
rights concerns, including specific cases, with Chinese leaders. We
will not shy away from pressing our human rights concerns and urging
the Chinese government to implement structural reforms. Chinese
citizens themselves have spoken out about the need for the rule of law.
By lending our voice and our support, we can help their voices
resonate. As President Bush said in his Second Inaugural Address, our
goal is ``to help others find their own voice, to attain their own
freedom, and to make their own way.''
Chairman Hagel, Commissioners, promoting freedom and democracy is
the cornerstone of U.S. foreign policy, and our policy toward China is
not exception. Thank you, again, for this hearing. I would be happy to
take your questions.
______
Prepared Statement of Jerome A. Cohen
july 26, 2005
china's legal system in transition
Senator Hagel and other distinguished members of the Commission and
staff:
I am pleased that the Commission has chosen to focus today on law
and legal
institutions in the People's Republic of China (PRC) and the relevance
of recent developments in Taiwan and South Korea. Our media have
understandably shown increasing interest in the political, economic and
military aspects of China's rapid modernization. Yet too little
attention has been paid to the role of the legal system.
overview
In December 1978, when the Chinese Communist Party's new leadership
under Deng Xiaoping announced the ``Open Policy'' that launched the
country's impressive modernization program, it also recognized the
importance of constructing a legal system commensurate with China's new
ambitions. At that time, the Soviet-type legal system that the PRC had
adopted in the early 1950s lay in tatters, a victim of twenty years of
political turmoil that had culminated in the Cultural Revolution, whose
spirit was encapsulated by a People's Daily editorial entitled ``In
Praise of Lawlessness! ''
The new legal system was to fulfill many functions. It would
provide for the orderly and efficient conduct of government not only at
the central level but also at the provincial and local levels of a vast
land and population. It would facilitate
domestic industrial and commercial development and international trade
and investment. And it would suppress what was deemed to be antisocial
behavior, while assuring greater fairness and accuracy than had
prevailed in the administration of justice during the three preceding
decades of Communist rule.
At the time, only a quarter century ago, China displayed virtually
none of the indicia of a formal legal system. Its Constitution was
merely an unenforceable collection of political slogans and general
principles. It had few useful laws and even fewer bilateral or
multilateral agreements with other countries to offer guidance on legal
problems. The National People's Congress (NPC), nominally the country's
highest government authority, was in the process of resurrection. The
courts were a shambles. The procuracy, which is responsible for
criminal prosecutions and is supposed to serve as the ``watchdog of
legality,'' had been non-existent for twelve years, and Chinese lawyers
for over twenty. China's Soviet-style commercial arbitration
institutions were not suitable for settling disputes with Western
companies, and legal education and publications were only beginning to
revive.
Today, China plainly has a formal legal system, one that, from the
perspective of a generation ago, can be seen to have made significant
progress. An increasingly robust National People's Congress and its
Standing Committee have enacted a huge amount of legislation on topics
of all description. These laws have been supplemented by myriad
regulations of the State Council, China's leading executive
institution, and the central ministries and commissions under it, as
well as provincial and local people's congresses and governments. The
Supreme People's Court (SPC) and the Supreme People's Procuracy are
both now vigorous organizations, although, like the State Council, they
are subordinate to the NPC. They too have issued large numbers of
``interpretations'' and other documents, either separately or with each
other and with other agencies, that are the substantive equivalent of
supplementary legislation. The PRC has also concluded with other
governments a large number of bilateral agreements bearing upon the
domestic legal system and now adheres to many multilateral treaties
concerned with international business law and human rights.
China today has a nationwide court system including over 3,000
basic courts and almost 200,000 judges. The task of forging this huge
and inexperienced group, originally staffed mostly by former military
and police officers without legal education but now increasingly
recruited from law school graduates, into professionally competent,
honest, impartial and independent decisionmakers is formidable. To do
so the Supreme People's Court has labored mightily, within the confines
of Party policy and the SPC's limited political power.
Much the same can be said about the procuracy. It now has almost as
many legal personnel as the courts and is recruiting more and more law
graduates. Lawyers, reestablished in 1980 and currently numbering
approximately 120,000, play an
increasingly important role in China's cities, especially in civil and
business transactions. Their ranks too are strengthened each year by
thousands of new law graduates, who now have to pass, together with
would-be judges and procurators, a
challenging unified bar examination, with a pass-rate, last year, of
only slightly over 11 percent. Legal education has become one of the
fastest-growing branches of Chinese academic life, and the country now
has almost 400 law schools of various kinds.
Moreover, legal scholarship has flourished in recent years.
Bookstores that never before had a legal section or even a shelf
devoted to law are now filled with collections of laws and analytical
treatises and teaching materials on all subjects. They also carry ``how
to do it'' self-help manuals on many topics such as civil and
administrative law procedures, tax law and real estate transactions,
for those who do not have access to or wish to avoid lawyers. There are
now over 90 law magazines, rife with law reform proposals. Within the
limits of Party policy, which fluctuates with the time, place and
topic, the Internet has spawned nationwide legal discussions. It makes
available information and views about law that newspapers and
television, also under Party control, may have slighted.
Legal developments relating to foreign trade, technology transfer
and investment have led this progress. During the decade prior to the
tragedy of June 4, 1989, the PRC's desire for foreign direct investment
stimulated the steady creation of a useful legal framework. The PRC's
opening of capital markets in the early 1990s initiated a new wave of
financial legislation and regulation, and its 2001 entry into the World
Trade Organization has produced a host of substantive and institutional
reforms that should continue for some time. China's international
commercial arbitration organization is now the world's busiest, and
almost 200 cities have established their own arbitration commissions to
handle domestic and foreign-related disputes.
The development of law and legal institutions has contributed to a
burgeoning popular awareness of law and indeed ``rights
consciousness.'' Profound social and economic change has fostered this
trend. An economy formerly dominated by state-owned enterprises and the
``state plan'' is now increasingly free, transactional/contractual and
open to private entrepreneurs. A society that was once one of the
world's most egalitarian now features accumulations of wealth that have
created one of the world's biggest gaps between rich and poor. Much of
this wealth has been created by collusion between government officials,
still in command of land and other resources, and corrupt
entrepreneurs. This, in turn, has generated not only demands for the
protection of the personal and property rights of the successful but
also even stronger demand for such protection from losers in the
ongoing socio-economic transformation, who desperately seek legal
remedies to alleviate perceived injustices. Women, minorities, the
disabled and other victims of discrimination invoke China's
Administrative Litigation Law and related legislation to challenge
arbitrary official action. Farmers strive to use the courts to stop
unfair official land requisitions or financial impositions by local
cadres, and urban residents try to rely on the law to prevent
developers and city officials from demolishing their housing without
adequate compensation.
Too often such efforts fail. Legislation is frequently inadequate,
and many conflicts between national and local norms, and the
proliferation of regulations, interpretations and other edicts often
produce incoherence and inconsistency. There are too few able lawyers,
and those who are not afraid to undertake sensitive cases sometimes
lose their license to practice law or are detained and punished for
``damaging public order'' and similar offenses. Judges are often
vulnerable to corruption, political control and the pressures of
``guanxi'' (social connections based on family, friendship, school or
local ties). Since their appointment, promotion, assignment,
compensation and removal are all at the pleasure of local government
and Party leaders rather than the Supreme People's Court or provincial
High Court, they and the litigants who appear before them are subject
to the abuses of ``local protectionism.'' Even PRC arbitration, to
which many foreign businesses and Chinese turn in an effort to avoid
the vagaries of the courts, sometimes suffer from the same types of
pressures that distort judicial justice. Prosecutors, who are supposed
to guard against such illegal conduct, are usually too weak politically
and plagued by their own vulnerabilities to remedy the situation.
criminal justice
The weakest link in the PRC legal system is criminal justice. The
codes of criminal procedure and criminal law, first enacted in 1979,
three decades after the founding of the PRC, and revised in 1996 and
1997, respectively, lend themselves to abuse by law enforcement
authorities. The PRC is, of course, far more notorious than the United
States for its resort to the death penalty in many thousands of cases
each year, with no fewer than 68 statutory provisions authorizing
executions. The Chinese Government is so embarrassed by the number of
executions it carries out that the precise figure is one of its most
closely guarded secrets.
The Criminal Law is so broad and vague regarding both the conduct
it prohibits and the punishments it prescribes that the regime has no
difficulty imposing severe sentences on persons engaged in unapproved
political or religious activity. Although ``counterrevolutionary''
conduct is no longer prohibited, its prohibition has been replaced by
the equally imprecise crime of ``endangering state security,'' which is
often invoked. So too is the sending abroad of ``state secrets,''
loosely defined, and often applied to information designated as secret
after the fact, by the judicially unchallengeable National State
Secrets Bureau. Also punishable is the sending abroad of
``intelligence,'' which turns out to be merely information in the
public domain that the regime does not want disseminated outside China.
Moreover, the courts, and those Party and government leaders who
dictate court decisions in sensitive cases, are free under the law to
impose the harshest sentences ``if the circumstances are serious'' and
especially ``if the circumstances are especially serious.''
The protections afforded by the Criminal Procedure Law (CPL) are
too few, ineffectual, and riddled with exceptions to permit meaningful
defense. When police or prosecutorial investigators wish to detain a
person, they can do so on their own, without the approval of any
outside agency. They need not notify the suspect's family or work unit
of the detention, the basis for it or the suspect's location if, in
their opinion, to do so might interfere with the investigation. In most
PRC criminal cases the suspect is denied ``release under guaranty
pending trial,'' the Chinese equivalent of bail, again a decision made
by the investigating agency alone. Nor do the investigators need
outside approval if they decide to search the suspect's residence,
office or car.
If the suspect's family can afford a lawyer to advise him, the
lawyer can be prevented from meeting his client for the entire
investigation period, which can last for months or even years, if the
investigating authority claims that the case involves ``state
secrets.'' In cases where the lawyer does manage to meet his client,
that meeting is usually monitored by the police. The lawyer, not
considered by the law to be a ``defense lawyer'' until the
investigation has concluded and the case has been sent to the
prosecutor for indictment, is usually not permitted to question his
client about the facts of the case but can only introduce him to the
elements of the charge and his rights under the law. Nor may the lawyer
begin his own inquiry into the case, gathering evidence and
interviewing witnesses, until the official investigation has ended.
Even then, interviewing witnesses is dangerous because of the risk that
a witness, under government pressure, may change his statement and the
lawyer might then be accused of falsifying evidence.
The suspect has no right to silence, and reticent suspects are
frequently subjected to torture, despite the Criminal Law's explicit
prohibition of such conduct in accordance with the obligations the PRC
assumed when ratifying adherence to the U.N. Convention against torture
in 1988. Suspects are also frequently subjected to ``overtime
detention,'' even if one accepts the investigating authorities' dubious
interpretations of the time limits set forth in the CPL.
The outstanding feature of PRC criminal investigation is the
inability of the suspect, his lawyer, family or friends to challenge
the legality of any official actions before an independent tribunal or
other agency. Any attempt to obtain administrative reconsideration of
investigators' decisions by their higher authority is usually
fruitless. In principle the local procuracy should be willing to review
questionable decisions or practices, but political realities usually
preclude this. The procuracy is without incentive to self-monitor its
own investigations, as in official corruption cases, and even less
likely to intervene in an investigation by either the Public Security
Bureau or the State Security Bureau, whose investigators generally
outrank their procuracy counterparts in the Party's political pecking
order. Any effort to seek judicial review is rebuffed by the courts on
the ground that they do not enter a criminal case until after
indictment. And neither the local people's Congress nor government, the
Party Discipline and Inspection Committee or the Party Political-Legal
Committee that coordinates cooperation among the government law
enforcement agencies will prove helpful. The result is unchecked
discretion for the investigators and total frustration for the suspect
and his lawyer.
Trial has its own frustrations for the defense. Witnesses rarely
appear in court. The prosecution simply reads out their written
statements, thereby depriving the accused and his lawyer of the
opportunity to cross-examine them granted in principle by the 1996 CPL
revision. Rules of evidence are rudimentary, and illegally
obtained evidence is often admitted in practice. Defense lawyers must
be careful during trial, as well as during earlier stages of the
process, not to alienate prosecutors, who have the power under Section
306 of the Criminal Law, a provision aimed squarely at lawyers, to
prosecute them for assisting in the falsification of evidence. This
``Sword of Damocles,'' as it is known, has been invoked over 200 times.
law reform prospects
Yet we can expect robust law reform efforts to continue in China,
even in the field of criminal justice. The PRC is still considering
whether or not to ratify the International Covenant on Civil and
Political Rights (ICCPR), which it signed in 1998. Ratification would
commit the PRC to changes in law and practice in the criminal justice
area as profound as those changes in economic law and practice required
by the PRC's entry into the WTO. Regardless of ICCPR ratification, the
Chinese Government, under strong domestic pressures to eliminate some
of the most glaring
defects in the CPL and some of the worst distortions of the CPL in
practice, has already made clear its determination again to revise the
CPL. Although optimists predict that the newly revised CPL might appear
by next year, we should not underestimate the magnitude of the task. A
multitude of controversial issues awaits the NPC, and achieving a
meaningful reconciliation of the conflicting views of the Ministry of
Public Security, the Ministry of State Security, the Ministry of
Justice, the Supreme People's Court, the Supreme People's Procuracy,
the All China Lawyers Association, influential academic experts and
relevant Party organizations will require enormous legislative skill,
time and energy.
Pending comprehensive revision of the CPL, the NPC may decide to
make certain urgently needed reforms earlier. For example, should the
NPC do something about ``reeducation through labor'' (``laojiao'')? It
is an administrative punishment that is not authorized by NPC
legislation (as now required by other NPC legislation) and that is
dispensed by the police, who can send someone to labor camp for three
or four years without the participation of lawyers or the approval of
the procuracy or the courts. Although the Ministry of Public Security
has been waging a public relations and lobbying campaign to retain
``laojiao,'' even conducting limited experiments to allow lawyers into
the proceeding in an effort to avoid losing this major sanction, its
continuing existence is blatantly inconsistent with the premises of the
CPL and the Law on Legislation, as well as perhaps the Constitution
itself, as many Chinese judges, officials, lawyers and academic experts
have pointed out.
Perhaps we can also expect an expanded role for the courts, and
further strengthening of the courts and the legal profession in order
to enable the courts to play this expanded role. The Chinese Government
is plainly facing a domestic crisis of confidence caused by the failure
of its institutions to deal adequately with a rising tide of public
grievances relating to environmental pollution, real estate
manipulation, unauthorized local financial demands, corruption,
discrimination and other official abuses. Increasingly, interest
groups, fueled by a shared sense of injustice, are taking to the
streets and even rioting. These protests threaten political, economic
and social stability and indeed the common people's belief in the
legitimacy of Communist rule. Too often, for example, the courts,
instead of enforcing national laws against lawless local officials or
conflicting local regulations, serve as the instruments of the local
elite against the victimized populace. And lawyers brave enough to
assist the protesters in their efforts to resort to courts in order to
vindicate their rights are often detained or intimidated by the local
police and prosecutors.
Thus it would be logical for the PRC leadership to try to lift
local courts from the mire of ``local protectionism'' by placing the
power to appoint, promote, assign, compensate and remove basic and
intermediate court judges in the Supreme People's Court or the
provincial High Courts so that local judges would become more
responsive to national needs rather than local pressures. It would also
be helpful to review the current criteria for compensating, assessing,
promoting and removing judges. Similarly, we might expect enlightened
leaders to sympathize with the growing consensus, at least among
lawyers and scholars, that Section 306 of the Criminal Law should be
repealed, in order to encourage more lawyers to take part in and
vigorously defend criminal cases, and to try to channel public disputes
into the courts instead of the streets.
emerging constitutional law
The most interesting development in Chinese law at this time is the
gradual emergence of constitutional law as a genuine subject and a
factor to be reckoned with in Chinese politics and government. Although
the PRC has had several constitutions in its 56 years, until recently
few individuals or groups took seriously the idea that the provisions
of the Constitution might actually be enforceable, whether through the
NPC or the courts.
Neither Mao Zedong nor Deng Xiaoping endorsed Montesquieu's
separation of powers. Nor did they embrace the revered Sun Yat-sen's
distinctive five power division adopted by China's pre-Communist
Government, that of Chiang Kaishek's Nationalist Party, which is still
in use by the Republic of China on Taiwan and which is only now
beginning to totter. As we have seen, in the PRC system, following the
Soviet model, the national legislature, the NPC, is the single supreme
power, and all other government institutions--executive, prosecutorial
and judicial--are subordinate to it. Under this arrangement, the power
to interpret and apply the Constitution is lodged in the Standing
Committee of the NPC, not in the courts. Yet, given the realities of
Communist Party control of government and public life, until two years
ago no one activated this constitutional decisionmaking mechanism. The
accepted view was that the Constitution recorded the nation's and the
regime's basic principles, outlined the government structure and set
forth the rights and duties of citizens. It served many purposes--as
national symbol, ideological rallying point, educational instrument,
policy vehicle and propaganda tool--but was not generally thought to be
the source of enforceable legal rights. Recently, however, as a
consequence of rising rights consciousness, reflected in and further
spurred by constitutional amendments mandating respect for human rights
and property rights, the idea of translating the promises of the
Constitution into real life began to attract China's expanding legal
community.
An important stepping stone toward the present was the enactment in
1989 of the Administrative Litigation Law, which for the first time
made the legality of a broad range of concrete official decisions, but
not abstract legislation or regulations, subject to judicial scrutiny.
The concept that government itself should be under the law--and not
merely use the law as an instrument of its will--was strengthened by
the subsequent adoption of several other laws, especially a State
Compensation Law offering limited redress, again through the courts,
for certain wrongs inflicted by officials.
But, without a constitutional amendment or at least authorizing
legislation, could the courts, which are subordinate to the NPC, also
begin to enforce constitutional rights and, if so, to what extent?
Could ordinary legislation authorize Chinese judges to invalidate on
constitutional grounds abstract regulations and even laws of the NPC
itself as well as concrete administrative decisions? If judicial review
of the constitutionality of legislation and regulations seemed out of
the question without a constitutional amendment and if such an
amendment was impossible to achieve in the current political climate,
would there be any better chance of acceptance for a constitutional
amendment that would establish a separate and independent
Constitutional Court to deal with such questions, along the lines of
the
German model that influenced the Republic of China on Taiwan and the
Republic of Korea? Many reformers recognized that the Party leadership
is not prepared to endorse such a radical institutional move toward the
rule of law. They believed that realism called for building on the
existing constitutional structure by having the NPC prescribe
procedures that would facilitate efforts to invoke the dormant
constitutional decisionmaking power of the NPC Standing Committee, and,
with little fanfare, that was accomplished as part of the Law on
Legislation adopted in 2000.
This new procedure has actually begun to be used, and in a dramatic
fashion that captured public attention. When in 2003 a hapless
university graduate named Sun Zhigang died in police custody, the media
and Internet ignited a storm of protest against the long unpopular
State Council regulation on ``shelter and repatriation'' of migrants
under which Sun had been detained. Three courageous law professors then
petitioned the NPC Standing Committee to invalidate that regulation as
unconstitutional. By swiftly revoking the regulation, however, the
State Council moved to avoid the necessity for a constitutional
decision by the NPC Standing Committee. This disposed of the immediate
constitutional challenge, but it also vividly demonstrated to the
country that a new legal weapon had entered the political arena.
Anticipating a flood of similar petitions relating to other
grievances, the Legal Work Committee of the Standing Committee
established a special office within the Legal Work Committee to give
preliminary scrutiny to claims that government regulations violate the
Constitution and should therefore be invalidated by the Standing
Committee. Since then, although the petitioning process remains cloaked
in obscurity, a series of complaints has reportedly been filed with the
Standing Committee against various State Council regulations. Literally
tens of thousands of Hepatitis B carriers claimed that civil service
regulations unlawfully discriminated against them. Female civil
servants petitioned to invalidate the requirement that women retire
five years earlier than men, and thousands more have challenged
national and local regulations authorizing demolition of their housing.
These complaints have not yet resulted in a constitutional decision by
the Standing Committee but they have spurred administrative reforms and
added to popular support for the concept of
constitutionalism.
While popular demands are compelling the NPC Standing Committee to
inch
forward in the development of a mechanism for reviewing the
constitutionality of administrative regulations, if not yet
legislation, they are also beginning to stimulate the courts to
reconsider their long-held view that judges cannot refer to
constitutional rights even in deciding cases in which plaintiffs are
only seeking relief against concrete administrative acts or private
wrongs. The Supreme Court led the way for the lower courts in its
landmark 2001 interpretation approving reference to the constitutional
right to education as a basis for awarding the plaintiff relief against
both a private party and a government agency in a suit that was not
brought to invalidate a law or regulation but to establish the
liability of the defendants. The trial courts have since begun to
grapple with a range of anti-discrimination complaints brought to
challenge concrete administrative actions against individuals. On at
least two occasions the bringing of a suit alleging denial of equal
protection of the laws resulted in termination of the challenged
conduct, even though the court ultimately dismissed the claim as not
among those authorized for adjudication under the Administrative
Litigation Law. In two other cases the court apparently granted relief
to plaintiffs without clearly indicating its reliance on the
constitutional claims made.
Plainly, this is an area that is only beginning to emerge, and the
task of the foreign observer is not made easier by the limits of the
PRC system for reporting judicial decisions, which makes it difficult
to learn about and obtain court judgments. Yet, at this early stage,
one might wonder why, in view of the SPC's 2001 education case
interpretation, lower courts seem reluctant to base their decisions on
constitutional rights in concrete cases that do not attempt to
invalidate legislation or regulations. If, for example, gender
discrimination claims are not deemed to fall within those that can be
asserted under the Administrative Litigation Law, they plainly are
covered by the Constitution's requirement of equal rights for men and
women, not to mention the Marriage Law and other legislation. So long
as the courts do not tread upon the exclusive prerogative of the NPC
Standing Committee to review the validity of legislation and
regulations but stick to the task of settling disputes about concrete
administrative or private actions--a task that no one believes the NPC
Standing Committee will ever take on--why should the courts deny
Chinese citizens the benefits of their Constitution while nevertheless
consulting lesser sources of law?
Will the judiciary respond in a creative way to the challenges
presented by an increasingly litigious society? Much depends on whether
the Party leadership has the wisdom and vision to appreciate the
contribution that able and imaginative judges can make to stabilizing a
country that is seething with injustice. I am confident that the
quality of the judges is improving, as one recent statistic suggests. A
decade ago only 10,000 judges in the country, a mere 6.9 percent of the
total at that time, had received an undergraduate education of any
kind. Today, over 90,000 judges have reached that level, some 51.6
percent of the current total, and this trend toward greater education,
increasingly legal education, will continue.
due process and the communist party
Albeit little known to most Chinese people, growing rights
consciousness has even invaded the precincts of the Communist Party's
70 million members. When dealing with the crucial issue of the
imposition of Party sanctions against individual members, the most
severe of which is loss of membership, the Party Charter has long
recognized certain elements of due process--notice to the individual of
the adverse action proposed and a right to be heard before a decision
is made. In practice that provision has often not been implemented.
Recently, however, some notable steps have been taken to put living
flesh on the bare bones. For the past four years local Party Discipline
and Inspection Commissions (DIC) in at least twenty provinces have
reportedly conducted a range of experiments with what has come to be
known as a ``Party Discipline Tribunal'' or ``Intra-Party Court'' that
adopts some basic features of PRC criminal court trials. In one respect
at least--the opportunity to cross-examine witnesses--this evolving
institution may do better than most criminal trials.
Although details have varied, at these tribunals Party
investigators are required to present evidence, including witnesses,
and the accused is permitted to challenge the evidence, produce
witnesses of his own and even have the assistance of a fellow Party
member in coping with the evidence and arguing his case. The triers of
the case are designated by the local DIC and, like real PRC judges in
sensitive or difficult cases, they merely report their findings to the
tribunal's leadership for decision. In some cases the hearing is
``open'' in the sense of allowing certain Party members to attend, and
the accused has a limited right to appeal an adverse decision. These
Party tribunals have apparently not yet been convened at the provincial
or central level, but their emergence at the grass roots demonstrates
the spread of ideas of fundamental fairness among the country's elite
when it comes to dealing with itself. Loss of Party membership, even in
today's more mobile Chinese society, can be a devastating blow. These
Party tribunals also reflect the Party's increasing concern for
enhancing its legitimacy, punishing corruption and ventilating the
punishment process to reduce the likelihood that it too is corrupted.
the relevance of taiwan and south korea
I hope that enough has been said to suggest some of the progress,
problems and prospects of law reform in China. Before concluding, I
want to refer briefly to the relevance of Taiwan and South Korea and
perhaps create an intellectual bridge to the remarks of my two
colleagues on this panel, whose observations I am keen to hear.
Taiwan and South Korea, of course, have much in common regarding
the development of the rule of law. Their current democratic
governments both emerged from decades of authoritarian dictatorship at
the same time. Both places are deeply influenced by China's Confucian/
Buddhist culture and imperial Chinese bureaucratic
traditions, and, like the PRC, have little in their pre-modern past to
sustain legal concepts and practices such as those relating to
individualism, government under law, judicial independence and
constitutionalism. Each suffered decades of Japanese colonialism until
1945, and they learned even more about the virtues of a genuine rule of
law from its absence during their respective post-World War II
dictatorships. Yet both made rapid social, economic and educational
progress during the post-war era, and, as part of this process, created
a legal elite of law professors, lawyers, judges, prosecutors and
officials familiar with other legal systems and international legal
standards. This is undoubtedly what enabled each to make a relatively
smooth transition to a democratic legal system once political
circumstances permitted.
Each also features a constitutional court that in the democratic
era has been remarkably free in invalidating legislation as well as
regulations and administrative acts inconsistent with fundamental legal
norms. Unelected judges making controversial constitutional decisions
of profound political significance in a new and hotly contested
electoral environment would test the mettle of any system, especially
one rooted in East Asian political-legal culture. Japan's Supreme
Court, by contrast, has been far more cautious in its constitutional
decisionmaking. Yet, thus far, the constitutional judgments of
Taiwanese and Korean courts have, by and large, been accepted as
legitimate, even by powerful losers.
There are obviously important differences between the PRC, on the
one hand, and Taiwan and South Korea, on the other--especially the huge
discrepancies in population and political systems. Nevertheless, some
Chinese experts acknowledge that, as the PRC charts the course of its
future law reform, there is much to be learned from the experience of
both jurisdictions. Why this is so is easy to understand, as brief
reference to Taiwan will illustrate.
Would it be feasible for the PRC to establish an independent
constitutional court despite China's uncongenial traditions for it?
Taiwan shares those traditions, of course. Yet the recent example of
its Council of Grand Justices suggests that, given the political will,
a constitutional court could function successfully in Mainland China
also.
Can the PRC create a judiciary that is politically independent,
free of corruption and ``local protectionism,'' and immune to the
distortions of ``guanxi'' (connections)? Under the Nationalist Party's
dictatorship, Taiwan's judiciary and its prosecutors were a scandal.
Yet, during the past fifteen years, starting long before the 2000
electoral victory of the Democratic Progressive Party ousted the
Nationalists from the Presidency, Taiwan's judges--and prosecutors
too--have undergone a remarkable transformation. How did this happen?
How is it possible to create a professional elite, including lawyers,
that has actually begun to take legal ethics seriously, even while the
political process is still awash in corruption? PRC leaders may not
like the answers to such questions, but should pursue them.
Would Chinese criminal investigators be able to do their job if
their powers to search, arrest and detain become subject to review by
an independent court? What would be the impact of granting Chinese
suspects a right to silence? What effective measures might be taken to
enforce the PRC's existing, but often ignored, prohibitions against
police torture and coerced confessions? Should lawyers be allowed to
begin defending their clients during the often lengthy criminal
investigation stage? Again, Taiwan has a wealth of experience.
Perhaps most innovative and daring is Taiwan's recent determination
to improve the fairness and accuracy of criminal trials by adapting the
Anglo-American adversary system--minus the jury trial--to local needs.
This has produced formidable challenges: How to cross-examine witnesses
in open court and deal with other complex evidence problems? How to
change the roles of prosecutor, defense lawyer and judge to break the
mold of the traditional continental European model adopted by Chiang
Kaishek's regime three-quarters of a century ago? PRC reformers are
increasingly aware of the extent to which the continental European
criminal procedures on which their system has also been based have
themselves become more
``adversary'' in nature especially in the post-World War II years. They
now confront the difficult issue of how far to follow through on the
PRC's own considerable flirtations with the adversary system. Before
making their decision on this major issue, it would seem highly
desirable for them to take account of how a similar effort is faring in
a legal environment much more similar to the PRC's than that of Europe.
Of course, as previously noted, China's long struggle to attain a
civilized system of criminal justice is significantly undermined by the
continuing power of the police to avoid the criminal process entirely
by consigning people to as much as three or four years in a
``reeducation through labor'' camp. Even on this crucial question, the
experience of Taiwan is strikingly relevant. For many years under the
Nationalist Party, Taiwan had similar administrative punishments for
``hooligans,'' political dissidents and others, until such punishments
were held to be unconstitutional. At that point the legislature, no
longer willing to punish dissenters but still concerned with
``hooligans,'' established a special ``Public Order Tribunal'' under
the ordinary courts in an attempt to deal in a constitutionally
acceptable manner with the particular problems caused by ``hooligans.''
That legislation has confronted a succession of challenges before the
Council of Grand Justices, which is considering yet another
constitutional petition relating to this issue. Before deciding to
adopt a similar ``public order'' tribunal to preside over future
``laojiao'' cases, as has been proposed, the PRC would do well to
consult Taiwan's long effort to cope with this problem.
Mr. Chairman, on the basis of the above remarks, I urge the
Commission to endorse not only the continuing support of the Congress
and the Executive Branch for rule of law-related cooperation with PRC
lawyers, judges, prosecutors, officials and scholars but also the
commencement of our government's support for research on the
development of the rule of law in Taiwan and South Korea and its
relevance to law reform in the PRC.
______
Prepared Statement of John Fuh-sheng Hsieh
july 26, 2005
The legal system in Taiwan has been shaped by several factors.
First, Taiwan is a Confucian society. In Confucian culture, stability
is the paramount concern, and moral examples set by superiors are
considered more effective than legal codes in maintaining social and
political order. Such an attitude has surely been significantly changed
over the years as a result of exchanges with the outside world.
However, there are still traces of Confucian culture in Taiwan. In a
series of islandwide surveys, for instance, when asked to make a
tradeoff between political reform and stability, an overwhelming
majority of the respondents chose stability instead of political
reform.
The first major change in Taiwan's legal system came with the
Japanese in the late nineteenth and early twentieth centuries after
Taiwan was ceded to Japan by the Qing Dynasty. The Japanese set up
courts and brought in Japanese legal codes as part of the colonial
administration.
In 1949, when Kuomintang (Nationalist Party, KMT) fled to Taiwan
after being defeated by the Chinese Communists on the mainland, it
brought with it many laws it drafted and only partially implemented on
the mainland. Indeed, many of these laws remain the backbone of
Taiwan's current legal system, notably the Constitution (1947), the
civil law (1929-31), and the criminal law (1928).
To be sure, the first four decades of the KMT rule was not
democratic, and the laws were often subject to the government's or the
party's intervention. It was only after Taiwan became democratic has
the independence of the judiciary been better respected. Yet, even
today, instances of administrative intervention can still be heard from
time to time, and public officials may bypass or violate the laws but
can easily get away with it, showing that Taiwan's legal system has
improved, but has not lived up to the expectations.
How much did Taiwan's legal system contribute to its democratic
transition? Probably not much. There are many other factors which may
be more salient in Taiwan's democratization process. For example, the
popular support received by the opposition movement among the native
Taiwanese as a result of their long exclusion from the political
process was certainly a very important factor forcing the KMT
government, which was dominated by the minority mainlanders, to make
concessions. Other factors such as cultural change and the emergence of
a civil society as a result of the remarkable economic development have
all paved the way for reshaping Taiwan's political system. The pressure
from other countries, especially the Untied States, also, to some
degree, facilitates Taiwan's political change.
Although the legal system may not directly contribute to Taiwan's
democratic transition, it is undoubtedly a very important factor
affecting the phase of democratic consolidation. Indeed, a sound legal
system supported by an appropriate legal culture is one of the most
important guarantees for the well-functioning of a liberal democracy.
Yes, Taiwan's legal system has greatly improved, and its legal
culture is now more in line with the Western notions of laws.
Nevertheless, there is still room for improvement. For one thing, many
people may pay lip service to the notion of the rule of law, but it is
doubtful how firmly rooted it is. Indeed, as powerful politicians act
in clear violation of the law, their act was often dismissed as, say,
election gimmick, and forgotten quickly by the public. The recent
stalemate in the political process can be partly attributed to the lack
of true respect for laws on the part of many politicians.
Now, can Taiwan's experiences be exported to China? Not really. The
development in China, particularly since 1949, was very different from
that in Taiwan. The infusion of communism--or more precisely, Maoist
communism--to a large extent, changed the very notion of laws and
democracy. Although Deng Xiaoping's reform revitalized some Western
legal practices to serve the need of economic reform and to prevent the
recurrence of the Cultural Revolution type of chaos, the country still
has a long way to go before a well-functioning judicial system--not to
mention a liberal democracy--can be established.
______
Prepared Statement of John K. Ohnesorge
july 26, 2005
i. introduction
I have been involved with Northeast Asian legal issues in various
ways since the mid-1980s, when I went to China to teach and then to
study. I was an attorney in private practice in Seoul from 1990 to
1994, after which I went to Harvard Law School, where I focused on
Northeast Asia in earning LL.M. and S.J.D. degrees. At the University
of Wisconsin Law School I am Assistant Director of our East Asian Legal
Studies Center, and I regularly teach and write on Northeast Asian
legal issues. I just returned from three months as a visiting scholar
in Japan, at the Nagoya University faculty of law.
Turning to the topic of this panel, in my view, the South Korean
experience of law and democratic transition gives us only limited cause
for optimism when we imagine China's future. I will provide the basis
for my views, but first would like to present a very short overview of
South Korean legal development, then describe the role of law in South
Korean authoritarianism.
ii. south korean law overview
South Korea's modern legal system is closely related to the
Japanese system, which was modeled primarily on German law. Japan
imposed it legal system on South Korea during the colonial period,
which lasted from roughly 1910 until 1945, and after independence South
Korea did not radically reform the basic structure of its legal system.
Unlike the U.S., South Korea has a single, bureaucratically organized
judiciary, and a unitary legal system. Law is a popular undergraduate
major in South Korean universities, but only a tiny percentage have
been allowed to pass the national bar exam, and thus the practicing bar
is very small. Unlike Japan, South Korea has a Constitutional Court as
well as a Supreme Court, introduced in the democratic constitution of
1987.
iii. law in authoritarian south korea
South Korea was essentially authoritarian from 1948, when the U.S.
military
government handed back sovereignty, until 1987, when the first truly
democratic elections were held, and the transition to full democracy
began. South Korea's
authoritarian governments, though stridently anti-communist and
important U.S. allies during the cold war, abused human rights in ways
reminiscent of things one hears about in China today. While these
abuses were certainly not of the scale that have taken place in China,
the conditions and mechanisms under which they arose were sometimes
strikingly similar.
For example, due to the institutional weakness of the South Korean
courts,
authoritarian South Korea's various constitutions functioned more like
policy statements than as fundamental law defining and constraining
political power. Administrative law hardly functioned for decades,
meaning that government agencies were only very weakly constrained by
judicial review in their dealings with citizens and private economic
actors. Property rights were enshrined in the various constitutions,
and were well-specified in the German-style codes inherited from
Japan's colonial rule, but remained ultimately contingent upon
maintaining political favor, as from time to time the government
confiscated property from those whose support for the regime wavered,
and who thus breached the implicit compact between the authoritarian
state and its leading economic actors. The executive thus enjoyed
enormous discretion when dealing with the private sector, and while
such discretion was part of authoritarian control, administrative
discretion was also at the heart of the interventionist industrial
policy which South Korea practiced as it grew in to an economic
superpower.
With respect to civil society, the South Korean government worked
hard to neutralize organized labor by, among other things, demanding
that unions belong to the single, government-dominated Federation of
Korean Trade Unions (FKTU). This served the dual purposes of
suppressing wages and of controlling the rise of an autonomous civil
society. Other elements of civil society, such as religious groups or
business interests, were also subjected to severe pressures not to
challenge the government's basic monopoly on political authority. The
South Korean CIA (KCIA), an enormous organization relative to South
Korea's population, was a primary tool for this government penetration
of civil society, insinuating itself into churches, unions, newspapers,
student organizations and work places far beyond what we would
understand as necessary, even given the extremely serious security
threats posed by North Korea.
The criminal law was another important tool of authoritarian
control. For example, in 1974 and 1975 President Park, Chung-hee issued
a series of notorious Presidential Emergency Decrees which, among other
things, made it a crime to criticize the constitution, to propose
revision thereof, to ``fabricate or disseminate false rumors,'' or to
``defame'' the Emergency Decrees themselves. Emergency Decree No. 1
dispensed with the warrant requirement for arrest, detention, search or
seizure, with trials to be conducted by ``Emergency Courts-Martial''
established under Emergency Decree No. 2. Conviction under Emergency
Decree No. 1 could result in a prison sentence of up to 15 years.\1\
Many people were charged under these decrees, including a former
President of South Korea, and a defense attorney who reportedly
received a 15-year sentence for criticizing the Emergency Courts-
Martial in the closing argument he made in the course of defending a
client.
---------------------------------------------------------------------------
\1\ Presidential Emergency Decree No. 1, effective January 8, 1974.
---------------------------------------------------------------------------
Extra-legal means were also regularly used to silence the
government's critics. Many will remember that in 1973 South Korean
agents in Japan kidnapped Kim, Dae-jung, later the president of South
Korea and a Nobel Peace Prize winner, and it was reportedly only
intervention by the United States that kept them from murdering him.
Less well remembered is Professor Choi, Jong-gil, of the prestigious
Seoul National University law faculty, who died under very suspicious
circumstances while in KCIA custody for his criticisms of the Park
regime. Critics of the government were sometimes kept under house
arrest or subjected to similar forms of control without legal basis.
Furthermore, democracy activists who were arrested on dubious grounds
were sometimes released if they would provide written promises not to
continue their activities. Such statements could then be used by the
authorities as justification for punishing those who returned to
political activities. At times governments also reached beyond the
political activists themselves to punish their family members.
President Park was assassinated by his own KCIA chief in 1979, but
South Korea's poor human rights performance continued under General
Chun, Doo-hwan until 1987, when massive civil unrest convinced General
Chun to allow the creation of a new constitution and democratic
elections. General Roh, Tae-woo won the 1987 election, so South Korea
had to wait until 1992 to have a civilian president, the former
opposition leader Kim, Young-sam. Regular elections followed in 1997
and 2002, and democracy is now firmly established.
iv. lessons from south korea's past for china's future
As I said at the outset, my reading of the South Korean experience
suggests to me that reform in China is going to be a very long, slow
process. I would like to now outline what I see as reasons for
pessimism, then suggest reasons for optimism.
First of all, South Korea's poor human rights record continued
despite the fact that the country had become an economic powerhouse
with an essentially capitalist economy. This suggests that even a very
successful market economy cannot be relied upon to automatically
unleash social forces potent enough to bring about democracy or the
Rule of Law. The South Korean case suggests instead that law can be
kept under political control for a very long time, even after a country
has become quite wealthy. South Korean business interests, for example,
were unwilling or unable to exert significant demand for the Rule of
Law, as some approaches to law and development suggest they would have.
Big business was instead entwined in a corrupt, non-law based
relationship with the executive and the ruling party, the legacy of
which continues to this day. Nor is the technical development of law
and legal institutions necessarily going to lead directly to the sorts
of legal and political reforms that many hope for in China. In
authoritarian South Korea there was a technically complete, coherent
system of law, many students majored in law at university, and the few
who became judges, prosecutors, or private practitioners were well
educated and very talented. At various times these talented, well-
educated lawyers, judges, and prosecutors did resist the
authoritarianism of the executive branch, but most chose instead to
work within a system that rewarded them very well, but demanded
obedience.
A further cause for concern is based upon structural differences
between authoritarian South Korea and China today. In South Korea's
case there were structural limits on the powers of the executive branch
that are not present in the Chinese context, one of which was the
relationship with the United States. While America's approach to South
Korea was complex and sometimes contradictory--generally supporting the
authoritarian governments for strategic reasons while specific
individuals and institutions worked hard to support political and human
rights reforms there--the pro-democracy, pro-human rights pressures
being exerted from the United States enjoyed a degree of influence over
South Korea that no outside force will ever again have over China.
While the international climate may now be less tolerant of
authoritarianism than it was during the cold war, China is truly
sovereign in a way that South Korea was not.
In addition, although South Korean dictators tried hard to suppress
civil society and to organize it along corporatist lines, they faced
obstacles that China doesn't face. South Korea's Christian churches,
Catholic and Protestant, and often with support from churches in the
United States, were pillars of resistance to human rights abuses that
the governments were never able to control, though they certainly
tried. The South Korean student movement as well was an active source
of resistance for decades, drawing on a tradition of student activism
dating back to the early 20th century. Labor unions also resisted
repressive government labor policies, fighting to organize independent
unions and maintaining consistent pressure for democratization. In
China today such forces seem weaker than they were in South Korea even
at the height of its authoritarianism. While religion is growing in
importance in China, the churches don't yet appear to be significant
actors in civil society, and the government is clearly committed to
keeping them from playing such a role. Meanwhile, students in China
today don't appear willing to take the risks necessary for collective
political action, which Tiananmen Square showed could result in the
ultimate sacrifice, and the government appears to have been quite
successful in resisting the organization of independent labor groups.
And while the press in China is certainly more vibrant and loosely
controlled than it used to be, it seems still more subject to
government control than the press was in authoritarian South Korea.
Finally, South Korea, arguably like the Soviet Union in its last
days, was really led by one man, or a very small group of men, who had
the power to bring the system to an end when the time finally came.
Such concentrated authority was what made the system authoritarian in
the first place, but perhaps paradoxically it may also have allowed for
quite sudden political reform because there were fewer players whose
interests had to be taken into account. Political authority in China
today seems much more dispersed, which could make the system more
resistant to dramatic reform than the South Korean system was.
Despite these reasons for concern, there are also grounds for
optimism. First, human rights in many areas can be improved within an
authoritarian capitalist framework, which seeks to govern for the most
part through law and order and bureaucratic regularity rather than
uncontrolled bureaucratic discretion or Maoist ideological campaigns.
Recent reforms to China's criminal and administrative law can be
understood in this light, for example. But this legal regularity and
bureaucratic normalcy may not extend to civil and political activities
that challenge state power, and the state retains the discretion to
define what constitutes such a challenge.
Second, globalization and new information technologies clearly make
it much harder to control China's rising civil society than was the
case in authoritarian South Korea, where the government could more
successfully control cross-border and domestic information flows.
Combined with the fact China is much bigger and more socially diverse
than South Korea, this must increase the difficulty of maintaining
stable authoritarian rule.
Third, the international economic order now seeks to place demands
upon national legal systems that are more exacting than the demands
placed upon authoritarian South Korea, and foreign direct investment
plays a larger role in China's economy than it ever did in South
Korea's. Although China employs many of the interventionist, highly
discretionary industrial policy measures that South Korea did, there is
considerable pressure for more law-based economic governance. And while
the impact of international economic integration as a force for
political liberalization or the Rule of Law is easily overstated, it
probably does play some positive role.
Finally, and most important, there are many people in China today
who reject the idea that they are not ready for democracy, the idea
that as East Asians they value order and hierarchy over individual
rights, or the idea that political liberalization must be postponed
until China's economy attains some magical level of Gross Domestic
Product per capita. The study of history does not provide us with
``laws,'' and while South Korea's experience suggests that legal and
political reform in China is likely to be a long, slow process, I
believe the aspirations of the Chinese people make progress inevitable.
Thank You.
______
Prepared Statement of Hon. Chuck Hagel, a U.S. Senator From Nebraska,
Chairman, Congressional-Executive Commission on China
july 26, 2005
The Congressional-Executive Commission on China meets today to
assess the development of the rule of law in China. The Commission will
also examine the role of legal institutions in South Korea and Taiwan
to determine what lessons there may be for reform in China.
Over the past 25 years, China has worked to build a market-based
economy and rebuild a legal system and legal institutions that were
destroyed during the Cultural Revolution. Today, we can see in every
Chinese province the effects and achievements of market reforms,
forward-looking economic changes, and legal development. But China's
political system continues to leave most Chinese people without a voice
in their own political future, and legal institutions have yet to
provide a reliable check on the arbitrary exercise of government power.
Popular frustration, especially with official corruption, seems to be
growing. Without effective administrative, legal, and political
channels through which to redress their grievances and protect their
economic and civil rights, Chinese citizens often have little choice
but to take to the streets. Such a result can only undermine China's
progress.
China's legal system will be an important foundation for stability
and development in that country. As Chinese scholars and officials have
worked to reform China's legal system, they have demonstrated a
consistent willingness to consider the characteristics and development
experiences of other legal systems. Two neighboring legal systems,
those of South Korea and Taiwan, provide particularly relevant
examples. China today faces many of the same problems and decisions
that South Korea and Taiwan faced in the 1970s and 1980s. As reform in
these areas progressed, legal institutions provided a stable platform
for the resolution of disputes, the enhancement of the protection of
human rights, and the development of transparent and fair
administration of government.
The U.S. Government supports the efforts of many Chinese citizens
and government officials to reform their legal system and build a more
transparent, fair, and participatory society. Political change is
complex and imperfect, and China's future will be up to the Chinese
people. This Commission has consistently recommended to Congress and
the President that the United States increase funding for legal
exchange with China and actively engage China in legal cooperation. As
today's statements will suggest, such efforts need not be purely
bilateral, and may benefit from incorporating the expertise and
experience of scholars from South Korea and Taiwan, whose legal
development models are in many ways more relevant to today's China than
those of the United States.
To help us better understand current trends in the development of
China's rule of law and the experiences of South Korea and Taiwan, we
turn to our witnesses.
Principal Deputy Assistant Secretary of State, Gretchen Birkle,
joins us from the Bureau of Democracy, Human Rights and Labor at the
State Department, to present the U.S. Government's view of rule of law
in China. Prior to joining the State Department, Ms. Birkle worked for
more than five years at the International Republican Institute [IRI].
As deputy director for the Eurasia division, Ms. Birkle managed IRI's
activities in nine countries of the former Soviet Union.
After Ms. Birkle, we will hear from a distinguished panel of
private experts who will share their expertise. Professor Jerome Cohen
of New York University Law School will give us an overview of legal
reform in China and help us tie the South Korea and Taiwan experiences
to China. Professor Cohen is also an adjunct senior fellow for Asia at
the Council on Foreign Relations, a lawyer with the international law
firm of Paul, Weiss, Rifkind, Wharton & Garrison, and a leading expert
on the Chinese legal system and international relations in East Asia.
Professor John Hsieh will provide perspectives on Taiwan. Professor
Hsieh teaches in the Department of Government and International Studies
and is Director of the Center for Asian Studies at the University of
South Carolina. He has written numerous books and articles on Taiwan's
democratic transition and is a leading expert on this subject.
Professor John Ohnesorge of the University of Wisconsin School of
Law will discuss the role of law and legal institutions in South
Korea's democratic reform. Dr. Ohnesorge also serves as Assistant
Director of the law school's East Asian Studies Department, practiced
law in South Korea during several years of democratic transition (1990-
1994) and is an expert on Korean law. He is the author of ``The Rule of
Law, Economic Development, and the Developmental States of Northeast
Asia.''
______
Prepared Statement of Hon. James A. Leach, a U.S. Representative From
Iowa, Co-Chairman, Congressional-Executive Commission on China
july 26, 2005
Mr. Chairman, I am pleased to join you and the Members of the
Congressional-Executive Commission on China this afternoon for this
important hearing on a topic of great interest to all of us who pay
attention to China. I look forward to hearing our witnesses today on
whether we may derive some insight into China's future political
development by looking at the recent historical experience of South
Korea and Taiwan.
I believe that the modern economic and democratic development of
South Korea is a profound achievement for which the Korean people
deserve great credit. The people of South Korea are deservedly proud of
the Republic of Korea's arrival as a global actor--economically,
militarily, and culturally. The United States not only welcomes those
changes without reservation but we celebrate them together with the
Korean people. I also believe that Americans can take some satisfaction
in knowing that the United States has made an essential contribution to
these developments.
Our two vibrant democracies remain tightly bound through a deep and
long-standing security relationship, ongoing political and cultural
affinities, extensive economic bonds, and extraordinary people-to-
people ties, cemented in many instances by a common educational
experience and led by the million-and-a-half strong Korean-American
community here in the United States. It should be underscored that the
United States is extraordinarily proud of its Korean population, which
is the largest in the world outside of the Peninsula.
Perhaps uniquely in the world today, the United States is committed
to a strong, independent, reunified Korea. America has sacrificed blood
and treasure in defense of freedom for the people of South Korea, and
we understand that freedom necessarily implies independence of
judgment. From a Congressional perspective, America's commitment to
South Korea has to be steadfast and our alliance unquestioned as the
unpredictable unification process with the North proceeds. The North
must not be allowed to drive a wedge between the U.S. and South Korea.
The United States must take the long view, and the tone of our public
and private diplomacy must give voice to our inner conviction that, as
a vibrant democracy committed to economic and personal freedoms, the
Republic of Korea is a Nation the dignity of which deserves our deepest
respect.
Mr. Chairman, with respect to Taiwan, we marked in 2004 the 25th
anniversary of the enactment of the Taiwan Relations Act (TRA). I am
proud to have been among the proponents and supporters of the Act, and
I am also proud of a small provision I authored relating to human
rights and democratization. It is with the greatest respect that I
observed the courage and sacrifices of those who challenged the
Kuomintang government to open up to democracy. We recall that, while it
supported the free market and was anti-communist, the party of Chiang
Kai-shek on Taiwan had certain organizational attributes similar to the
Communist Party on the mainland. All Americans strongly identify with
Taiwan's democratic journey and we join in celebrating the fact that
the people of Taiwan now enjoy such a full measure of human freedom.
The robust multi-party system and opportunity-oriented economy that
has developed over the past 25 years on Taiwan is a prototype for the
world of progressive political and economic change. Indeed, economics
and politics have conjoined on Taiwan to allow more progressive strides
to take place there than in any place on earth over the past
generation. The miracle of Taiwan's peaceful democratic transition is
of great significance not only to its 23 million citizens but also to
the 1.3 billion residents of the Chinese mainland. These Chinese now
have the chance to examine another model of governance and social
organization made successful by a people with a similar cultural
heritage.
Mr. Chairman, as our engagement with China deepens, and we mutually
identify those issues in which the United States and China have a
commonality of interest, it is my hope that Americans can play a role
similar to that which we played in South Korea and Taiwan--supporting a
peaceful transition to multiparty democracy and even greater economic
freedom.
I look forward to hearing from our witnesses this afternoon.
Thank you.