[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

                              ----------                              
                                                                   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.

                                 
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