SPEAKERS CONTENTS INSERTS
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49–269 CC
1998
U.S. POLICY OPTIONS TOWARD CHINA: RULE OF LAW AND DEMOCRACY PROGRAMS
HEARING
BEFORE THE
SUBCOMMITTEE ON
ASIA AND THE PACIFIC
OF THE
COMMITTEE ON
INTERNATIONAL RELATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
APRIL 30, 1998
Printed for the use of the Committee on International Relations
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COMMITTEE ON INTERNATIONAL RELATIONS
BENJAMIN A. GILMAN, New York, Chairman
WILLIAM GOODLING, Pennsylvania
JAMES A. LEACH, Iowa
HENRY J. HYDE, Illinois
DOUG BEREUTER, Nebraska
CHRISTOPHER SMITH, New Jersey
DAN BURTON, Indiana
ELTON GALLEGLY, California
ILEANA ROS-LEHTINEN, Florida
CASS BALLENGER, North Carolina
DANA ROHRABACHER, California
DONALD A. MANZULLO, Illinois
EDWARD R. ROYCE, California
PETER T. KING, New York
JAY KIM, California
STEVEN J. CHABOT, Ohio
MARSHALL ''MARK'' SANFORD, South Carolina
MATT SALMON, Arizona
AMO HOUGHTON, New York
TOM CAMPBELL, California
JON FOX, Pennsylvania
LINDSEY O. GRAHAM, South Carolina
JOHN McHUGH, New York
ROY BLUNT, Missouri
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KEVIN BRADY, Texas
LEE HAMILTON, Indiana
SAM GEJDENSON, Connecticut
TOM LANTOS, California
HOWARD BERMAN, California
GARY ACKERMAN, New York
ENI F.H. FALEOMAVAEGA, American Samoa
MATTHEW G. MARTINEZ, California
DONALD M. PAYNE, New Jersey
ROBERT ANDREWS, New Jersey
ROBERT MENENDEZ, New Jersey
SHERROD BROWN, Ohio
CYNTHIA A. McKINNEY, Georgia
ALCEE L. HASTINGS, Florida
PAT DANNER, Missouri
EARL HILLIARD, Alabama
BRAD SHERMAN, California
ROBERT WEXLER, Florida
STEVE ROTHMAN, New Jersey
BOB CLEMENT, Tennessee
BILL LUTHER, Minnesota
JIM DAVIS, Florida
LOIS CAPPS, California
RICHARD J. GARON, Chief of Staff
MICHAEL H. VAN DUSEN, Democratic Chief of Staff
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Subcommittee on Asia and the Pacific
DOUG BEREUTER, Nebraska, Chairman
JAMES A. LEACH, Iowa
DANA ROHRABACHER, California
PETER T. KING, New York
JAY KIM, California
MATT SALMON, Arizona
JON FOX, Pennsylvania
JOHN M. McHUGH, New York
DONALD A. MANZULLO, Illinois
EDWARD R. ROYCE, California
HOWARD L. BERMAN, California
ENI F.H. FALEOMAVAEGA, American Samoa
ROBERT E. ANDREWS, New Jersey
SHERROD BROWN, Ohio
MATTHEW G. MARTINEZ, California
ALCEE L. HASTINGS, Florida
ROBERT WEXLER, Florida
LOIS CAPPS, California
MIKE ENNIS, Subcommittee Staff Director
RICHARD KESSLER, Democratic Professional Staff Member
DAN MARTZ, Counsel
HEIDI L. HENNIG, Staff Associate
C O N T E N T S
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WITNESSES
Mr. John T. Kamm, Asia Pacific Resources, Inc.
Mr. Allen Choate, The Asia Foundation
Mr. Lorne Craner, International Republican Institute
Professor Minxin Pei, Princeton University
APPENDIX
Prepared statements:
Hon. Doug Bereuter, a Representative in Congress from Nebraska, and Chairman, Subcommittee on Asia and the Pacific
Hon. Howard L. Berman, a Representative in Congress from California
Mr. John T. Kamm
Mr. Allen Choate
Mr. Lorne Craner
Professor Minxin Pei
Additional material submitted for the record:
New York Times article submitted by Mr. Lorne Craner
Law Library of Library of Congress ''China Legal Developments in the Rule of Law'', submitted by Mr. Bereuter
Answers to questions submitted by Mr. John Kamm
Answers to questions submitted by Mr. Lorne Craner
U.S. POLICY OPTIONS TOWARD CHINA: RULE OF LAW AND DEMOCRACY PROGRAMS
THURSDAY, APRIL 30, 1998
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House of Representatives,
Subcommittee on Asia and the Pacific,
Committee on International Relations,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:35 p.m. in room 2172, Rayburn House Office Building, Hon. Doug Bereuter (chairman of the Subcommittee) presiding.
Mr. BEREUTER. The Subcommittee on Asia and the Pacific will come to order.
The Subcommittee meets today in open session to examine the state of democracy and rule of law in China and U.S. programs to assist in that area.
On Monday, the New York Times reported a noteworthy story. A young woman who worked in a Beijing hotel has sued the hotel because she believes it imposed illegal sanctions against her after she had a child without the hotel's permission. Such a story would have been unthinkable 10 years ago, but today, China's legal system is undergoing a remarkable change. Ordinary Chinese citizens throughout the country are actually suing the authorities for perceived abuse of power.
As we will hear from one of our witnesses today, Professor Minxin Pei, the number of administrative cases brought increased from 632 in 1986 to 79,966 in 1996. The number of civil and commercial cases likewise has grown exponentially. Three noted American NGO's, the Ford Foundation, Asia Foundation and the International Republican Institute, have been pioneers in developing legal reform projects in China. I am pleased to note the representatives from two of them have joined us today to share their expertise.
Why is legal reform and the rule of law in China important to us? Because for China to become a constructive and fully engaged member of the international community and to be effective in the global marketplace, its laws and their enforcement must meet international standards. Twenty years ago China was ill-equipped to uphold international agreements, but the desire for more rapid economic growth through trade and investment compelled China to address, first, its lack of commercial law. Advances in this field over the past years have helped to better protect economic investments and have contributed to daily commercial functioning. This, of course, benefits both ordinary Chinese and the foreign business interests alike.
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And, some would argue, more fully developed commercial law will help contribute to the development of a Chinese middle class. This new interest group, the argument goes, will in time press for basic human rights. The development of commercial law then is one more piece in the broader development of democratic institutions in China.
In addition to these concerns, there are other important reasons why we should care. As Americans, one of our prime foreign policy objectives in China is the advancement of basic human rights. We have constantly pressured the Chinese Government to make changes in its legal system that would guarantee these rights. As we all know, the human rights issue has been part of the often rancorous congressional debate on MFN renewal each year. I note with some satisfaction the Chinese have signed or agreed to sign the major U.N. conventions on human rights. But talk and signing agreements is cheap. The real proof of China's commitment to guarantee human rights will be seen in the enactment and faithful implementation of relevant laws.
We will hear from our witnesses today about the progress the Chinese have made in this critical field, as well as the obstacles hindering more rapid growth and progress.
Under strong congressional pressure to take a more active stance on human rights in China, the Administration has begun the China Rule of Law Initiative. This initiative grew out of the October 1997 summit between President Clinton and President Jiang Zemin.
As I understand it, the goal of this initiative is to improve basic legal institutions in China, the judiciary, the administrative process, the legal profession, law schools and legal information systems in measurable ways. These improvements will provide more predictability and protections in the area of civil, commercial and criminal law for ordinary citizens and commercial enterprises. Two of our witnesses will address their role on this initiative.
The Chinese legal system was in a state of ruin following the Cultural Revolution. Considerable progress has been made over the last 20 years. While hundreds of new laws have been enacted, implementation remains problematic. To give you a basic example, China still needs to take steps necessary to fulfill the freedoms and rights of citizens stipulated in the Constitution, their Constitution.
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Another weak area I hope our witnesses will address is the independence of the judiciary itself. Courts remain subject to heavy Communist Party influence, both through the appointment of party members as heads and senior judges of the courts and by party political-legal committees that exist parallel to the courts at all levels.
It is important that we continue, I think, to work with China to develop quality professional judges, procurators, police and lawyers. In addition, the system needs greater transparency. In that regard I am pleased to read just 2 weeks ago that China gradually would open all court proceedings to public and media scrutiny, except those involving national secrets, individual privacy or juveniles. This is, I think, a welcome step in the right direction.
A separate transparency issue and one which will be addressed is the accounting of Chinese prisoners believed to be imprisoned for the nonviolent expression of their political and religious beliefs. Mr. John Kamm, who joins us today, will describe his laudable efforts over the last 8 years to secure information on these prisoners. His efforts demonstrate that focused persistent efforts to engage the Chinese Government in a dialog on human rights can yield positive results when carried out in a professional and culturally sensitive way.
China's transition from the rule of man to the rule of law may be slow and halting. Communist Party leaders appear to favor a strengthened legal system only insofar as laws do not weaken the party or its power. A case in point is the spread of local village elections. Of course, the democratic countries of the world welcome this development, but the villages have relatively little power. Elections at the county level and above would be a more meaningful way of gauging the advance in democratization and the rule of law. We will be watching for that development.
[The prepared statement of Mr. Bereuter appears in the appendix.]
Mr. BEREUTER. Before we begin, I should mention that we had hoped to have a representative from the Administration here to describe the China Rule of Law Initiative. Unfortunately, after several false starts, we had to abandon that plan. All the key figures in this program, it appears, are accompanying Secretary Albright on her trip to China. I regret that they could not join us today.
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Actually, however, I see some advantage in having the Administration testify after today's panel can help inform us. Besides, you get more attention when you are the first panel.
This afternoon we are pleased to have an excellent and diverse panel of four to aid us in our examination of these important issues. First is Professor Minxin Pei of Princeton University. Professor Pei has done extensive research on the rule of law in China and is the author of an article in the January-February issue of Foreign Affairs entitled ''Is China Democratizing?''
Welcome, Professor Pei.
We will then turn to Mr. Allen Choate, Director of Program Development for the Asia Foundation. Mr. Choate, who I met with about 2 weeks ago, is stationed in Hong Kong and is responsible for all Foundation program activities in China and in the Hong Kong and Taiwan areas. He has extensive experience as a field representative in Southeast and East Asia, and we welcome him here today.
Third we have Mr. Lorne Craner, President of the International Republican Institute. Earlier as Vice President of the IRI, he was responsible for the initiation and oversight of the IRI democracy programs in over 30 countries, including China. Mr. Craner, I might note, is a veteran of the Hill, having served in 1980's as foreign policy adviser to Senator John McCain.
Thank you for joining us, Lorne.
Finally we will hear from Mr. John Kamm. Mr. Kamm is an interested businessman and human rights monitor, who now lives in San Francisco after spending more than 20 years in Hong Kong. Since 1991, Mr. Kamm has made 38 trips to Beijing in a private effort to engage the Chinese Government in a dialog on human rights. I have had the opportunity to collaborate with Mr. Kamm on some of his efforts in the past several years.
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In recognition of Mr. Kamm's efforts, the Department of Commerce gave his company, Asia Pacific Resources, its first Best Global Practices Award in June 1997. On that occasion, President Clinton said, ''I applaud your efforts, both the principles your work embodies and for the lives that you have affected.''
John, it is indeed a pleasure to have you join us here today.
Gentleman, consistent with this Subcommittee's practice, in order to provide adequate time for questions, I would ask that you please, if you can, limit your comments individually to about 10 minutes.
First I would like to turn to the Ranking Minority Member, the distinguished gentleman from California. We have a number of important Members on this panel who can make contributions in this area, so I am pleased to have a very good attendance on the Democratic side. Gentlemen, thank you.
Mr. Berman.
Mr. BERMAN. Thank you very much, Mr. Chairman. I want to hear the panel. I am not give going to give my entire statement. I would ask that it be included in the record of the hearing.
Mr. BEREUTER. Without objection that will be done.
Mr. BERMAN. I think this is a very useful hearing. I understand why the Administration can't be here. It would be interesting to hear their thoughts. But you have assembled a good group of people to deal with some of, at least at a superficial level, arguments that might say what could this possibly do. What could this small amount of money possibly do in a country as enormous as China, where one-party rule is so deep, where the focus, hopefully, of a program would be on something, yes, dealing with commercial issues, but also going broader than that and getting into questions of individual rights and due process and procedures and the Administration of justice.
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So, I will be very interested in hearing what the panel has to say on this, because if this can have an effect, I think this is the kind of program that we would all have a tremendous interest in supporting.
I will stop at this point and just look forward to hearing the testimony of this very good panel of witnesses.
Mr. BEREUTER. Mr. Berman, thank you very much for those comments.
[Mr. Berman's statement appears in the appendix.]
Mr. BEREUTER. I would now like to turn to the gentleman from Florida, Mr. Hastings, who was the first person on the scene here today. Thank you for your promptness. He has a lot of expertise in this area, and we are very fortunate to have him on this Subcommittee.
Mr. HASTINGS. Thank you very much, Mr. Chairman. Thank you for holding this hearing. Like Mr. Berman, I will be extremely brief.
I, too, welcome the witnesses and recognize the vast amount of expertise that exists in the witnesses that you have brought forward today. I consider this hearing to be particularly timely, and also, in a sense, celebratory in light of the fact that May 1st is the day that we focus in this country on Law Day, and I think it appropriate that we would be having a hearing on the rule of law as it pertains to the Chinese undertakings at this time.
Mr. Chairman, as you well know, I spent 15 years in the judiciary, and I am 35 years a lawyer, so this is a subject of critical interest to me and my continuing work with you on the Asia Subcommittee.
I will stop and just say I am grateful to the witnesses for the information that they have already provided us and look forward to their testimony. I thank you, Mr. Chairman.
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Mr. BEREUTER. Thank you.
Mr. BEREUTER. Now it is my pleasure to call on Mr. Faleomavaega, an exceptional Member of this Subcommittee, who works with us on the Hong Kong issues, as does Mr. Hastings.
Mr. FALEOMAVAEGA. Thank you, Mr. Chairman, for calling this hearing. I would certainly like to echo the remarks and sentiments expressed earlier by my colleagues, the gentleman from Florida as well as the gentleman from California.
This is my 10th year since being a Member of this Subcommittee, and, as you know, Mr. Chairman, I find it very amusing that some 10 years ago when I first came on this Committee, to be on the Asia Pacific Subcommittee was the pits. Nobody wanted to be on this Subcommittee because somehow the mentality here in Washington was still Eurocentric, very European, Middle East. When we talked about Asia, we talked about China. We talked about Asia Pacific, it was like being on a different planet, as if our interests were not paramount to the problems that we currently face in Europe and the Middle East.
Please don't misunderstand me, I know the concerns and the problems are very serious attending to our interests in Europe as well as the Middle East, but I know that many people in America do not realize that the conduct of our trade relationship with the Asian Pacific region is far surpassing Europe and any of the other regions of the world, only to the tune of approximately $400 billion a year; of course, despite the difficulties that Asia now currently has.
But I am a little more optimistic. When we talk about China, what can I say, Mr. Chairman? The sheer numbers alone, how do you devise a system of law for some 1.2 billion people on this planet, let alone it took us 200 years to get where we are at now for only 264 million living in this great Nation.
I have always taken the position, Mr. Chairman, that we need to give the people in China a little space. Even though it may be Communistic, Marxist, even though we also have relationships with other nations that are not necessarily like China, demagogues, dictators, rogue states, if you will allow me to say that term, but China is in a different situation. Among the most ancient of cultures, while China was living in silk and luxury palaces, many other societies were still living in tents. The Chinese have about a 5,000-year-old culture that is so rich in so many different ways.
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So I think you might say that China was officially established as a Communist country since 1949, and at that given time there were 400 million Chinese when the Republic of China was founded in 1949. So can you imagine that within this timeframe, since 1949 until now, I think we need to give the people and the leaders of China some space.
I am an advocate of human rights, I am an advocate of democracy, and I think it is great that our Nation should stand for those basic fundamental principles that this Nation was founded on, but I also believe we need to give a little understanding of so many of the problems that may not necessarily be like what we Americans go through in life.
I look forward to hearing from our witnesses this afternoon, and I know we will learn a lot from them.
Thank you, Mr. Chairman.
Mr. BEREUTER. Thank you very much. Parenthetically, I would say for at least the last two Congresses, to bear you out on what you said earlier, that the Asia Pacific Subcommittee has been the most popularly chosen Subcommittee on both sides of the aisle.
Mr. FALEOMAVAEGA. I would say, Mr. Chairman, I give my hat to you for your being Chairman of this Subcommittee. I could not have had a better friend and a better leader to provide leadership to this Subcommittee. As you know, your predecessor, Steve Solarz, a dear friend and certainly probably the most consistent expert that we have had for years in this institution of someone who is knowledgeable about the Asia Pacific region, I want to also commend you for your sincere and very diligent efforts to know what is happening in this important region of the world and why our national interests should not be lessened in any way when it comes to the involvement of our foreign policies, especially our economic and social interests in this area.
Again, I thank you, Mr. Chairman.
Mr. BEREUTER. I would yield you another minute, but it is getting excessive, and you are too loquacious today in your generosity.
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It is my pleasure now to call upon the first of our witnesses as listed. Mr. John T. Kamm, President, Asia Pacific Resources, Inc. You may proceed as you wish. Your entire statements, all four of them, will be made a part of the record.
STATEMENT OF JOHN T. KAMM, PRESIDENT, ASIA PACIFIC RESOURCES, INC.
Mr. KAMM. Thank you, Mr. Chairman, distinguished Members.
Eight years ago I came before this Committee and made a commitment that changed my life. I was the president of the American Chamber of Commerce in Hong Kong. It was the first year of the MFN debate, and I was testifying—not surprisingly, as president of the Chamber of Commerce—in favor of retaining China's most-favored-nation tariff status.
I pledged at that time to use my relationships and the goodwill that my position engendered in Beijing not to improve my business, but, rather, to intervene on behalf of prisoners believed to be imprisoned for the nonviolent expression of their political and religious beliefs.
Today I come before you to give you a report on what is a work in progress. I ask that the full written statement be entered into the record.
Before summarizing what I have learned from 8 years of doing this work, I want to express my appreciation to the Members of the Committee who have given me so much support and encouragement. The Ranking Member, Mr. Berman, and Congressman Manzullo have both written powerful letters directing my attention to the special situations of prisoners in Tibet and of religious prisoners, respectively.
Congressman Salmon has not only written a letter to the Chinese Government supporting the Prisoner Information Project, but he has joined me on the Chinese service of the Voice of America and in flawless Chinese appealed for greater cooperation. In an extraordinary act of generosity and courage, my friend Congressman Ed Royce hand-carried a letter with my list of 75 names to China and delivered it to Chinese leaders.
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A very special thanks is due to the Chairman, Mr. Bereuter, who has not only written letters and raised the project in meetings with Chinese officials, but who has invited me to testify to the Committee and the American people on why this work is important. In doing so, he has prompted the Chinese Government to provide information not only on specific prisoners, but on points of Chinese law that might be used to help many others.
I record these thanks not only because your support deserves recognition, but to make the point that at long last, it seems to me at least, the Chinese Government is taking note of and demonstrating a certain responsiveness to your opinions and your concerns, very deep concerns, over the human rights situation in China.
Mr. Chairman, after 8 years of work, 39 trips to Beijing, trips to many other Chinese cities, hundreds of meetings with scores of officials, countless phone calls, letters and faxes every day for 8 years, what have I learned? Simply this: That focused persistent efforts to engage the Chinese Government in a discussion on human rights and the situation of prisoners, undertaken in professional and culturally sensitive ways, can yield positive results. Done the right way, intervention works. Not in every case, not all the time, certainly not at the pace we would like to see, but my experience tells me that if we find out their names, if we learn as much as we can about them, and if we raise their cases at every opportunity, the chances are that prisoners will be afforded some measure of relief and possibly early release.
Now, let me go quickly over the testimony, highlighting some of the major points. In the first section I talk about the importance of prisoner accounting and American human rights diplomacy, not just with respect to China, I might add. There is, of course, the humanitarian effect. When you hand over a list, that list is an absolute good. There is a humanitarian effect. I think too often we get bogged down in a dichotomy between systemic change and individual cases. In fact, by focusing on individual cases, we can in effect bridge into discussions of systemic problems. That has been the experience of these last few years.
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Also, as you pointed out in your opening statement, Mr. Chairman, accounting of prisoners assists in the effort to promote transparency in China. The importance of transparency applies across the board in terms of the relationship. We would like to know what their military budget is. We don't know what the budget is. We would like to know what the trade regulations are, and we don't know. I think trying to get information on prisoners assists the general effort to enhance transparency in China.
The next section of my testimony talks a bit about the Prisoner Information Project itself. I have maintained a dialog on prisoners with the Chinese Government in many different departments, the State Council, the Religious Affairs Bureau, the Ministry of Public Security, the Supreme Court, but the most substantive, certainly, and structured dialog has been with the Ministry of Justice.
I would like to just say simply that there are real differences in dealing with these different departments. Different departments have different attitudes toward discussing prisoners with someone like me. I have found the Ministry of Justice to be the most cooperative. Others have not been so cooperative. I draw that distinction because I think we should, in fact, be aware of that in terms of our own reaction to visitors from China and when we visit China.
Now, as I just mentioned, the most substantive and structured dialog has been with the Ministry of Justice. I have filed approximately 230 inquiries on prisoners with the Ministry of Justice over the last 8 years. I have received information on about 130 of those. What I do is submit carefully prepared, balanced lists of prisoners. Most of the prisoners have been convicted under the old criminal law of counterrevolution. But there are also prisoners convicted of such crimes as disturbing the social order, trafficking in state secrets—that is often used in cases of journalists—and, most disturbing recently, and I will return to this, people in re-education camps. In reply, the Ministry of Justice gives me eight or nine pieces of information on each prisoner.
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Now, when I submit a list, as I mentioned, it is very carefully put together. About 100 hours of research go into every list. I try to give a priority to prisoners who are thought to have medical problems. I also try to include prisoners from as many provinces as possible and to seek a balance among ethnic groups within China, and male and female, and different occupations.
The next section of my testimony concerns the Prisoner Information Project and the course of U.S.-China relations. Certainly my cooperation with the Ministry of Justice has had its ups and downs, largely reflecting the overall state of relations between the two countries. But I make the point in my conclusion that even when times are bad, it is still possible to talk about these things with Chinese officials, and never, not even once, has a Chinese official refused to accept a prisoner list from me. Now, that, I think, is a testament again to their willingness to engage in a discussion of these cases.
The other point with respect to this section of the testimony is the absolutely vital importance of being persistent. In mid-1995, the Chinese Government stopped providing information to me. They had made a commitment to do so, but they simply stopped. For 2 1/2 years they refused to honor that commitment. Only in late September and early October of last year, thanks in large measure to the support of Members of the Committee and other Members of Congress, the cooperation resumed. I have now received in the last 6 months four installments of information on prisoners.
I never gave up. I never accepted ''no'' for an answer. I think that is very important when dealing with the Chinese on this subject. You have to be persistent, certainly patient; but persistence is key.
Now a little bit about what the information tells us. I looked at the inquiries I filed with the Ministry of Justice between June 1991 and early 1995. I submitted 133 inquiries, or I should say inquiries on 133 prisoners. I received information on 117. For this hearing, I went back and checked the disposition of those cases, and you will see in Appendix 4 that information.
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Roughly one-third of the prisoners about whom inquiries were filed were paroled or had their sentences commuted. One-third served out their sentences and were released. One-third are still in prison. That indicates a substantially higher rate of release than for the prisoner population as a whole. Again, I think it is evidence that a certain approach can yield some results.
Second, I am struck by the differences of treatment of prisoners in different parts of the country. For instance, in some of the coastal regions such as in Guangdong and Zhejiang Provinces, there are very few prisoners left from the June 4th demonstrations of 1989. Guangdong just sent me some information. They claim there is only one prisoner left from June 4th there. There have been quite a few releases in Guangdong. On the other hand, in Tibet, the situation is really quite serious. We rarely see early releases or commutations of sentences. So we can, in fact, see differences in different parts of the country. As I have long advocated, I think in our human rights reports we should draw some of those distinctions.
Finally, I want to bring to the attention of the Committee something I think is quite serious, and that is the increased resort to re-education through labor. Many Chinese officials and legal scholars acknowledge that this form of incarceration is totally inconsistent with internationally and recognized standards of due process and fair trial.
We find in recent months increasing numbers of people who, 10 years ago, would have been sentenced by a court and put in prison for counterrevolution, instead are being put into re-education camps. Prisoners sent into re-education have no right to legal counsel; the committee is often made up of the police who arrested the prisoners; defendants have no right to even appear before the Committee. I know Professor Pei will be talking more about this subject. I think it is a very important topic that we should, when we pursue our rule of law initiative with the Chinese, be looking at very seriously.
I am drawing to the close of this brief statement. I have put forward some conclusions. Intervention is possible. We should take into account the different attitudes toward cooperation evidenced by different departments. And I do think the private sector can do more. Certainly I support a government role in funding rule of law programs, but I also believe that the private sector can do a lot. We have a lot of lawyers working on China. Lawyers in this country often do pro bono work. I think that the legal community can do a lot more in China of this kind of work.
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So, Mr. Chairman, I close my remarks as I close my testimony by quoting one of Dr. Martin Luther King's favorite statements: ''The arc of the moral universe is long, but it bends toward justice.'' Thirty years after his tragic death, it is appropriate that we remember and reaffirm that great American champion of human rights, recognition that injustice anywhere affects people everywhere.
Today I pause along the road that I chose before this Committee 8 years ago in this very room, and I look back and I reflect on what has been achieved. I am struck by how much more work needs to be done. As I look forward, I do not know where that road leads. There are many twists and turns. There is no map. There is certainly no career path. But let me, as I take up this burden, renew my pledge to you: That I will continue to do this work, with you by my side, until justice flows down like a river, yea, even in China, and righteousness a mighty stream.
Thank you, Mr. Chairman.
Mr. BEREUTER. Thank you, Mr. Kamm, for your powerful statement.
[The prepared statement of Mr. Kamm appears in the appendix.]
Mr. BEREUTER. Next I would like to call on Mr. Allen C. Choate, Director of Program Development, the Asia Foundation.
Mr. Choate is an American citizen-resident of Hong Kong.
Mr. Choate, you may proceed as you wish.
STATEMENT OF ALLEN C. CHOATE, DIRECTOR OF PROGRAM DEVELOPMENT, THE ASIA FOUNDATION
Mr. CHOATE. Thank you, Mr. Chairman. I will not, with your permission, read my statement, but request that its full text be included into the record.
I would like to use a few minutes just to make two sets of comments, the first in response to the Committee's request to discuss what the Asia Foundation is doing and will do in China with regard to the rule of law; and then, second, some reflections on that process of legal change and development in China itself.
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As a result of the joint communique last October between the Presidents of China and the United States, there was agreement on a rule of law cooperative initiative. One result of that initiative is that the Administration has requested of Congress that $5 million be added to the Asia Foundation's appropriation for fiscal year 1999 with the understanding that the Foundation will apply those funds to further and advance projects which contribute to the specific legal development and rule of law promoting items in that joint communique.
I want to mention here, at the risk of sounding somewhat self-promoting, that rule of law development is not a new initiative for the Asia Foundation. It is one that we have had at the center of our activity in close to 20 countries covering 40 years in the Asia Pacific region. It has been a centerpiece of our programming in China since we began work there in 1979. We apply the same approaches and are as consistent in our grant-making techniques in China as we are anyplace else in Asia. We identify constituent interests, we evaluate needs, we provide sequential grants, all of which are intended to strengthen legal reform and in various ways promote citizen rights.
The size of our China program at the present time is approximately $1 million; that is to say, $1 million in grant-making. About 80 percent of that total is concerned with what we would call rule of law issues. That total does not include, I should mention, a books distribution program. That is a separate activity under which the American publishing industry makes available titles to us. We ship them to China, and they are distributed to universities in China.
That program, by the way, is a cooperative one. The Chinese Government pays for the ocean freight and pays for the domestic distribution. At the present time there are about 700 universities which have received over 1 million volumes through this program.
I mention this in particular because we in the Asia Foundation believe that that may serve as an instrument for one of the six objectives in the cooperative agreement. That is, the expansion of legal information and the exchange of legal materials. It is a well-managed program that would be available to do that.
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In judging projects to be supported and institutions with which the Asia Foundation will cooperate in the rule of law field, we applied three standards. We use three filters to judge progress and to assess results. The first of these, and I believe the most important one, is restraining the arbitrary exercise of state power and penalizing the predatory behavior of culpable officials.
Here the focus of our program activity in China is on administrative law and administrative procedure. That is critically important because administrative law defines state authority and limits state discretion. It provides the general public with the avenues and access of due process, and the weapons to defend themselves against encroachments of the state.
This is an incredibly new field in China. Chinese law traditionally has not had a stream or legacy of administrative law practice. It has really only been since the late 1980's, really the 1990's, that administrative law has come onto the books and been used, and used mainly by the public.
The Asia Foundation's current and planned programming under the rule of law initiative would focus on assistance and cooperation with the Bureau of Legislative Affairs for the continued drafting, enactment and enforcement of a series of very specific administrative rules and regulations that achieve the goals that I set out before; that is to say, limiting the discretion of the state, defining what is excessive behavior and what is acceptable.
There is also a new National Institute of Administration in China, only, I think, 3 years old, which is worth noting because it is the first genuine civil service training academy using professional standards. We intend to work with that institute's soon-to-be-established administrative law center under this field.
The second standard is protecting legitimate rights and interests. Here from a legal point of view the focus is on civil law. Civil law for China is critical because the boundary line between the civil sector and the public sector in China is a very blurred one. This has traditionally been the case in China and it remains so today. Civil law and its development and use helps to encourage from a legal point of view—the enabling of a Chinese civil society. In that regard there are many organizations that would not meet a Western definition of a nongovernmental organization, but certainly represent some new emerging entity that does begin to approximate elements of a civil society, such as community-based organizations which have come into being recently.
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Our activity here is grant assistance and cooperation with lawmaking agencies to create the legal and regulatory framework that will empower, if you will, a nonprofit sector and also community-based mediation that allows groups and individuals to mediate their disputes without reference to the government.
Planned activities under the new initiative include a very ambitious, popular legal education program. The pilot testing for which we have provided support so far and seen the results of indicate that this works. If people know what the laws say and get some sense of how they can use those laws to protect their interests, they will do so.
Under this heading, there are a great many legal aid centers—a surprisingly wide range for people not familiar with China—run by women's organizations, environmental groups, universities and the like. They litigate, they counsel, they mediate, they educate. There are hundreds of them, and they exist freely with the acceptance of the government.
Finally, the third standard that we are using and will continue to use is the impartial mediation of societal conflict. All that refers to is the hardware and the software of a legal system. The hardware are the courts, the notaries, the attorneys, the materials, all of which has to be in place to deliver justice. The software would be the values, the norms, the agreement to play the game by a certain set of rules.
When China emerged from the Cultural Revolution 22 years ago, it had not even the most basic, not even the most fundamental aspects of a structure, much less the institutions of a legal system. It has only been really within the past year or two that the pieces have come together for a complete system. I should note, for example, that only 1 year ago, lawyers were recognized as independent professionals able to establish their own firms and establish partnerships. That has only been possible for about 14 or 15 months.
The Asia Foundation's program plans here focus very heavily on formal legal education in China. At a time when the Chinese Ministry of Justice and the State Education Commission are beginning to overhaul their legal education curriculum, and at a time when they find the American clinical legal education model and JD graduate education approach particularly attractive, the United States should have mechanisms to provide for exchange and support of that planned curriculum and institutional reform. As part of our effort we hope to be able to encourage such a mechanism.
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I can talk about judicial systems training, which I referred to in my prepared statement later if you would like.
I would only like to conclude with echoing some of the sentiments that the Chairman articulated earlier. The Asia Foundation believes that this program, this set of initiatives, will over time make a difference; that there is the prospect for genuine progress and there is the basis for real cooperation. Moreover, we think that these will contribute over time and in increments to the protection of the rights of the individual Chinese citizen, and that this is a program in the American interests for three reasons: Economically, obviously a legal system is necessary to facilitate commerce between our two countries. It must be believable and must be efficient; politically, because the United States would like to see reform in China, and I would argue we are seeing a series of reforms under way. We want to see those reforms take place in an orderly manner. A destabilized and unpredictable China is a danger to its own people and a threat to everyone else. Finally, morally. A program which seeks to restrain the arbitrary exercise of state power and to protect the rights of individual citizens is consonant with some of the most cherished values of American society.
Thank you.
Mr. BEREUTER. Thank you very much, Mr. Choate.
[The prepared statement of Mr. Choate appears in the appendix.]
Mr. BEREUTER. When Mr. Hastings and I and several other Members were returning from our last Hong Kong visit in December, we had a chance to have a working dinner in Beijing convened at our request by Senator Sasser of rule of law and legal experts in Beijing, and our whole evening was spent in a discussion of some of the points you are bringing again to our attention with some additional facts. So I know we are looking forward to continuing to learn more about this subject.
Mr. BEREUTER. Next I would like to call upon Mr. Lorne Craner, President, International Republican Institute.
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Mr. Craner, welcome. You may proceed as you wish.
STATEMENT OF LORNE CRANER, PRESIDENT, INTERNATIONAL REPUBLICAN INSTITUTE
Mr. CRANER. Thank you, Mr. Chairman. Let me first especially thank you for the opportunity to appear as a witness today. As always, you and this Subcommittee are ahead of the curve, in this case examining policy alternatives toward China. I will summarize my written testimony, which I ask be submitted for the record.
Mr. Chairman, when I staffed Congressman Kolbe and Senator McCain in the 1980's, these walls echoed with many decisive foreign policy battles. Today there are fewer such debates, but one recalls the bitterness of the 1980's, and that is China.
Supporters of engagement who can no longer place our relationship in the structure of the cold war are accused by some of favoring profits over people. Supporters of isolating Beijing, who argue that only by containing China can we hope to change it, are sometimes called naive in their means and goals.
We have tried a third way, which I call engagement with a purpose, at IRI, which are working actively and aggressively to categorize changes viable in the Chinese context and could result in a better relationship, more in line with American values and interests.
Are these changes meaningful? Are they gathering momentum, and can they be encouraged by the United States? As you contemplate these issues, I would like to offer IRI's 5 years of experience in what these electorial legislative and legal reforms are and are not.
First, electorial reform. Like other changes in China, village elections trace their roots to economic liberalization. In this case, the dissolution of the communes in the 1980's. We at IRI were very skeptical of village elections when they were first recommended to us. The idea of democratic balloting in China seemed ridiculous, but we nevertheless asked to view the process, and in 1994, IRI became the first foreign organization ever to witness a village election in China.
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The elections we saw in Fujian Province were of a minimally sound technical quality, but we saw that if improved, they offered an unprecedented opportunity for ordinary Chinese to choose their local leaders. Even more important than the then quality of the elections was the stated willingness of Chinese officials to work to improve them.
We tested their sincerity then, and we have continued to test their sincerity in the intervening 4 years, observing some 50 elections in 10 provinces and, as IRI does in other countries, making suggestions to improve them. Some Chinese officials were at first wary of IRI's recommendations, claiming, for example, that secret ballot booths were too expensive. Our staffer went down to the market, bought some cloth and nails, and strung a cheap ballot booth up in a corner of their office.
In 1997, IRI returned to Fujian Province and found that three-quarters of the changes we recommended had been fully or partially implemented. These included secret ballot booths, equal treatment for Communist and non-Communist candidates, open campaigns, and candidate monitors to observe the process.
While we still see elections in need of dramatic improvement by and large as in Fujian, we have seen better and better elections across China over the past 4 years.
So what do these elections mean? Are they, as some have said, Potemkin villages, or do they show our two systems have become equivalent, as others imply, in stating that more people in China vote than vote in America?
The answer is neither. The bottom line on elections is that, first, 850 million rural Chinese are getting used to the idea of selecting their leaders. Second, those elected realize that to be reelected, they must listen to their constituents. Responsive government is the result. These are two things that are new in China, new to the consciousness of most Chinese, and as IRI has found in other countries, such a consciousness is vital in a functioning democracy.
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I would add that about 40 to 45 percent of those winning are non-Communist.
Are elections gaining momentum? Yes, on three fronts. First, elections with democratic standards are expanding horizontally with an ever-increasing percentage of China's 850 million voters voting in an election of high technical quality. Second, and perhaps more interesting, pressure continues to build to extend elections vertically to townships as China's urban dwellers insist on having the same privilege as their country cousins. Finally, China's National People's Congress (NPC) is expected this year to debate a draft bill that makes the experimental law on village elections permanent and mandates improvements such as secret balloting, open candidate selection, immediate announcement of election results, and transparent voter registration, changes, by the way, that were suggested by IRI over the past 4 years.
I said the NPC will debate the election law. That may sound odd, given Legislature's long-standing and well-deserved reputation as a rubber stamp. Since the late 1980's, however, the NPC has slowly gained more authority as China's rulers realized they needed wider input on the laws necessary to make a market economy.
IRI's first activities in China were in the area of legislative reform. We began in 1993 to offer technical advice during the drafting process on the substance of a range of bills necessary to build a market economy. As NPC delegates increased their understanding of these subjects, they were able to participate more fully and effectively in the legislative process and debate with ministries and among themselves the provisions of legislation.
Is the NPC's growing authority a meaningful reform? Those advocating a greater rule of law see in the NPC's increased authority the beginnings of an institutional bulwark against China's historic rule by man, and indeed China's legislators are beginning to challenge central authorities on issues from the three largest dam projects, to banking legislation, to corruption and crime.
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Is this change accelerating? When we first started working with the NPC, they were allowed to only offer amendments to bills still written in ministries. Today the NPC itself is beginning to write laws from scratch.
Another encouraging change is the NPC's installation this year of an anonymous voting system, a development that is likely to further diminish party control over the Legislature. All that said, China's Legislature remains a work in progress. As the economists put it, the NPC is not a real Legislature, but neither is it the rubber stamp it used to be.
In late 1995, NPC delegates and Chinese delegates asked IRI for assistance in China's legal system. As any Chinese corporation or citizen could tell you, implementation of laws and administration of justice are largely lacking in China. China's rulers are aware that these two areas are of vital concern for further economic development.
IRI agreed to work with the judges, realizing they could be introduced to Western legal standards that are increasingly relevant as China has integrated into the world's economy. In the years since, as with our other programs, we have been able to deal with the broader topics of political reform and rule of law by focusing on the technical aspects that make these concepts realities.
Is legal reform in China meaningful? It is in that, again, millions of Chinese are being introduced to and getting used to a concept that has never existed in China, the rule of law. In addition to changing its commercial law sector, China is widening its nascent legal aid system, extending legal protections to the indigent and poor. It is another area with which IRI has some familiarity since we conducted the first-ever foreign training for China's legal aid providers.
Is legal reform gathering momentum? Frankly, I think it is too early to say. Some Western scholars point to China's 1996 amended criminal code as evidence that legal change is accelerating. There is not yet evidence that the code is being fully implemented. I take more heart from the access that ordinary Chinese are being afforded to the country's legal system, both through legal aid centers and as individuals, and as the New York Times article you mentioned puts it, the new forces that have led people to the courts do not, however, guarantee that they find justice there.
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I would like to submit that April 27th article for the record. I think it demonstrates some of the encouraging changes and challenges of China's legal system.
Mr. BEREUTER. Without objection, that will be a part of the record as well.
[The article referred to appears in the appendix.]
Mr. CRANER. Mr. Chairman, in concluding, I hope I have shown that electoral, legislative and legal reforms under way in China are meaningful and accelerate, and organizations such as IRI can help categorize them. Yet in the same period these reforms have taken place, so too have the Tiananmen massacre and the continued imprisonment of thousands of dissidents. The NPC may be changing in an encouraging direction, but it has not reversed the Tiananmen verdict, and all the legal reforms to date haven't gotten those dissidents out of jail.
I therefore come before you as an advocate, but not a zealot. I am an advocate of broader American efforts to catalyze Chinese reforms that are congruent with American values and interests. At the same time, only a zealot would claim to know how China will change. Democratic development in China may come through the kind of incremental reforms I have described today. It may also come more suddenly. Of one thing we can be certain: Given the stakes involved, we would be wise to encourage every possible source of change for China, including the potential for change from within China.
That concludes my testimony, and I would be pleased to answer any questions you might have.
Mr. BEREUTER. Mr. Craner, thank you very much for your testimony.
[The prepared statement of Mr. Craner appears in the appendix.]
Mr. BEREUTER. Now we will hear from Professor Minxin Pei, Assistant Professor, Department of Politics, Princeton University.
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STATEMENT OF MINXIN PEI, ASSISTANT PROFESSOR, DEPARTMENT OF POLITICS, PRINCETON UNIVERSITY
Mr. PEI. Thank you, Mr. Chairman, Members.
Legal reforms have certainly become one of the most important institutional exchanges in China since the late 1970's. China's legal reform has produced profound changes in the country's legislative institutions and processes; in its criminal, civil, procedural and administrative laws. So in this testimony, I will briefly discuss the broad trends of legal reform in China and focus on legislative reform, the development of a professional legal community, and the growth of litigation. I will also analyze the weaknesses of the Chinese legal reform efforts and suggest how outside assistance may help promote the rule of law in China.
In terms of legislative reform, it is worth noting that before 1979, that is the year reform began in China, China's legal system, as the Chairman correctly noted at the beginning of this hearing, was in a state of total ruin. Few laws were enforced, and if you look at the Chinese legal books, in the 30 years since the founding of the People's Republic, only 52 laws were passed between 1949 and 1979. But if you look at the legislative output since 1979, about 300 pieces of legislation were passed by the NPC, and half of those may be considered full-fledged laws. Therefore, certainly on the legislative front, Chinese legal reform has taken a considerable step.
If you look at the laws in China today, about 95 percent of those laws enforced in China today were those laws passed after 1979. So if you judge by China's laws, certainly it is a very different regime.
Second, China's legal community has also grown tremendously since the late 1970's. In the first 30 years of the history of PRC, only about 24,000 graduates graduated from law schools or legal departments. China's legal community before 1979 was staffed mostly by uneducated individuals. Official figures show that by the mid-1980's, 58 percent of the officials in the Chinese legal system had less than a junior high school education. Less than 3 percent of the staff in the Chinese official legal system had a college-level education; 43 percent of them had never received any professional legal training.
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But if you look at the tables submitted to this hearing today, specifically table 4-A and 4-B, you will find that China's legal education has expanded considerably in the last 20 years. In this period, the number of lawyers in China grew from an estimated 3,000 in the early 1980's to roughly 100,000 today. China's law schools have also produced about 150,000 graduates in this period.
In terms of the growth of the legal community, it is worth noting some of the most recent trends. As one of the witnesses said earlier today, China's legal community is now witnessing the tremendous expansion of private law firms. If we look at the data in my table number 6, it may be noted that today 1 out of 3 law firms in China is a private law firm. Recent trends also show that all the new law firms founded in China today are private law firms. This trend has profound implications for the relationship between the professional legal community and their clients. The for-profit motive, the independent status of China's legal community will make China's lawyers much more aggressive and assertive in defending their clients' rights rather than adhering to official policy.
Last, let me point to the growth in litigation. The measure of effectiveness and credibility of any legal system, I argue, may be gauged by looking at the number of cases people file in the legal system. If people do not have the trust in that system, it cannot be imagined that they will bother to go to that system to seek judicial relief.
The growth of litigation in China for the past 20 years shows, or at least seems to suggest, that this system is gradually gaining credibility and effectiveness. In table number 8, it is shown here that the number of commercial cases filed in the Chinese legal system grew 100-fold over the last 2 years. At the beginning of the 1980's, only 15,000 cases were filed involving commercial disputes a year. As of 1996, 1.5 million similar cases were filed.
In the civil court, the cases also grew tremendously, from 300,000 civil cases a year in 1978 to roughly 3 million cases a year in 1996. The most encouraging trend is the rise of the number of cases filed by private citizens, commercial entities, against the government. Those cases grew from several hundred in the mid-1980's, to around 80,000 in 1996. For 1997, the number I got was 100,000. According to a study I have done, which was published in a journal, roughly 40 percent of the private litigants who filed suits against the government were able to obtain some kind of judicial relief.
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However, despite these visible signs of progress in legal reform, China's legal institutions still face tremendous challenges and are severely constrained by the current political system. Let me briefly discuss three.
First, the Chinese Government and the ruling Communist Party have not resolved the relationship between the rule of law and the power of the ruling party. At the moment the Communist Party still retains its supremacy. This unrestrained supremacy limits the effectiveness of the legal system, especially when the Communist Party and the power it enjoys are effectively above the law.
Second, the Chinese judicial system still lacks independence. Chinese judges are officially appointed by local people's Congress, but do not have tenure. They serve at the pleasure of local political leaders and are politically weak. The funding of Chinese courts is provided by local governments. This gives local political leaders powerful leverage over the courts.
Third, the Chinese legal system does not have a Federalist-style judicial system that can help enforce court rulings across the entire country. Typically court decisions handed down in one province are difficult to enforce in another province. In some extreme cases, people had to resort to kidnapping in order to see that court decisions are enforced.
In conclusion, I would like to make two recommendations, very specific ones, on how to promote the rule of law in China. The first is that outside assistance should focus on the inexpensive dissemination of laws, regulations, and court cases in China, so that the Chinese public and China's growing legal community and China's college students or law students can have ready access to this body of public knowledge in order to defend their rights.
Second, I applaud my other colleagues' efforts to help China's legal aid program. Even though this legal aid program is extremely important in providing legal assistance to China's poor, this program is at the moment extremely small in China. As of last year China only had 47 legal aid centers. They are poorly funded and staffed mostly by law students. I urge that a program be set up so that these legal aid centers may proliferate, especially in China's poorer areas, so that the most deprived segments of China's population, mainly the peasants, may gain access to China's legal system.
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Thank you, Mr. Chairman.
Mr. BEREUTER. Professor Pei, thank you very much for your testimony and for your specific recommendations to us.
[The prepared statement of Mr. Pei appears in the appendix.]
Mr. BEREUTER. I would announce that we do have two votes on the floor. We will have to recess here shortly. I will ask unanimous consent that all Members may have an opportunity to submit questions to the witnesses for their consideration and response.
I think that you have a conflict. Before we recess, however, I want to call to my colleagues' attention and to all in attendance here a report prepared this month by the Law Library of the Library of Congress, ''China Legal Developments in the Rule of Law.'' It was prepared for this Member and for the Subcommittee in anticipation and for assistance in developing this hearing.
Heidi Hennig is at that table, a Member of the Subcommittee staff. If any of you would like to have copies of this, please leave your name and address with her. It will, of course, be generally available. We want to facilitate the release of it. I think it is very good work. It was a contribution, and it was helpful to us.
I yield to the gentleman from California.
Mr. BERMAN. I would suggest putting also the report in the record of the hearing as well.
Mr. BEREUTER. Good suggestion. Without objection, we will do just that.
[The report appears in the appendix.]
Mr. BEREUTER. Having two votes, this Subcommittee will recess and reconvene at 3 p.m. I appreciate the witnesses staying with us for a question period.
[Recess.]
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Mr. BEREUTER. The Subcommittee will be in order. I would like to move to the question period. Even without my colleagues, we may as well use this time productively.
I would like to begin, of course, discussing a question about the rule of law, and I am going to bring some of the Doubting Thomases' views to the fore here. One of them relates to a question of how much we can really do with $6 million, if, in fact, that was the amount appropriated? How much would that really enhance what the country is already doing in the area of law in a country as large as China?
The question we also heard from a doubter is, isn't the prospect of the development of the rule of law in China more an issue of willingness and desire on the part of the Chinese Government than a need for funds? I would ask any of you who would care to address that question to please do so.
While you are at it, I would mention to you that one of the things we heard from the people we met with in Ambassador Sasser's dinner on the rule of law for us last December, one of the things we heard from several people is there is a need for assistance in this area, but they suggested to us one thing we wanted to avoid doing is to take the approach taken by the European community, now European Union. Perhaps you can tell me what they did that we should avoid. I think I have some understanding, but maybe you have some ideas whether or not they are wasting their money or not spending it the way we might advantageously spend it.
Who would like to be first? Mr. Choate?
Mr. CHOATE. Having ridden in the back seat of a nice black Audi sedan provided courtesy of a UNDP grant to one of the ministries involved here, I think I know what they are referring to by way of criticism. The bricks and mortar approach and provision of hardware.
Mr. BEREUTER. Is that the way they are spending their money, the bricks and mortar approach?
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Mr. CHOATE. As far as I can see. There is a great deal of money that has gone into hardware, capital equipment, in this area. Our own organization does not do that ever.
To get back to one other question you asked concerning whether or not this is an issue of will more than material resources, of course, the problem is largely a systemic one. You heard a reference made to the problems of the judicial system, which any amount of money is not going to correct. However, at the risk of going out on something of a limb, I would suggest that there are indications and there is some evidence to show that there is a commitment to change; that, in fact, the United States and elements of the Chinese leadership do share goals with regard to legal reform in China. Their motives may be different from ours, but the evidence is there.
You heard citations from Professor Pei concerning the rise in caseloads, cases litigated, the quantitative evidence. There is also qualitative evidence. I appended to my prepared statement a few anecdotes to show how even when cases are not litigated, the average Chinese citizen in the countryside, once informed of the law, will find some way to use that law to protect him or herself from depredations of the state.
Just within the past week or two, we learned that though the date is not certain, trials will now be open to the media and the public in China. I was reading in today's paper that Li Peng, on behalf of the NPC, was announcing that henceforth, draft laws will be circulated to the public at large for comment. This is a step forward.
All of these things and a dozen other such illustrations add up to an indication of a seriousness of purpose here on the part of the Chinese leadership with regard to change. In other words, to answer your question, I think there are indications that the will is there in many quarters.
Mr. BEREUTER. Is there anyone who has a different view or something to supplement what Mr. Choate has said? I am happy to hear your remarks. If there are any contrasts hear, I would like to hear them.
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Mr. CRANER. I would draw a contrast on the motivation point. Their motivation is economic reform, and they will do what it takes to ensure that that happens. Building a legal system is part of that. So if you are looking at whether or not we can make a difference, you need to think about their motivation.
I would add on the question of U.S. assistance—I heard what you just said—it does seem like such a small amount of money for such a big country. When you are contemplating that, I would say two things. No. 1, those who are thinking about it need to be realistic that there will be no immediate miracles as a result of a couple million dollars over a couple of years. I would say the payoff for some of this work may come when my baby daughter has children.
The second thing I would say is that we need to be careful about overspending, which is the opposite of what you said. There is an issue of capacity building here, both in the United States in the number of organizations that can do the work and in China in the number of people who are available to train. It would be all too familiar if a program were to be started, if overspending were to occur with some of the problems like the EU has had, simply because people have to spend the money because it is the end of the fiscal year, and then in a couple of years we hear back that nothing really changed. So I would caution on overspending in such a program.
Mr. BEREUTER. Thank you.
Mr. Pei, do you have anything to say on this subject?
Mr. PEI. I would recommend that assistance first target nonprofit, China's NGO's. And, of course, we need to get the cooperation of the Chinese Government. I believe that given the limited amount of resources we have, we ought to look very carefully at those nongovernmental organizations who may be more independent, more resourceful, and much more in need of our help.
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I would more specifically recommend some aiding of law schools in China, like the People's University Law School, that publishes case books every year. If we can somehow subsidize their publication program, these are relatively low-cost programs that will have a long-term impact in terms of establishing the most rudimentary library across the country.
Mr. BEREUTER. Which university law school?
Mr. PEI. The People's University Law School, which publishes, in conjunction with the Chinese judges' training center, they publish every year a volume of criminal cases, civil cases, administrative cases and economic cases. Right now, their budget does not allow them to publish thick volumes, but in the future I believe if we can somehow help them, they will be able to publish a lot more.
Mr. BEREUTER. Mr. Kamm, I am going to ask you some questions in a minute or two, if we have the opportunity, on the prisoner release, but I am just wondering now in light of your contact with the Justice Ministry, do you have any perceptions you want to share about the receptivity of the justice system to change, to assistance from the outside or from nongovernmental sources?
Mr. KAMM. I find them more receptive than a few years ago to offers of outside assistance and advice. I note that they are undertaking quite a bit of research on their own into foreign legal systems and into solutions that those systems provide.
For instance, I have been inquiring into whether or not, since they have removed the crime of counterrevolution from the criminal law, whether or not a general review of the sentences of everyone serving time for counterrevolution might take place. Such a review could possibly have the effect of releasing hundreds of people.
In response, they have told me that they have studied this proposal, and it is consistent with the Universal Declaration and the International Covenant on Civil and Political Rights, and they also outlined how different countries would handle this situation. Some would, in fact, release all of the prisoners. China's system would not do that, but they have outlined to me what kind of steps might be taken within their system to seek relief. So it seems to me they are open and quite serious about studying other models.
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Mr. BEREUTER. Mr. Kamm, some of the critics of the focus on specific individual and prisoner lists release efforts suggest that a better focus would be on promoting major institutional change. It seems to me that is kind of a false dichotomy. You can do both things without loss. It is really not costly to focus on release of prisoners. That is a matter of time, effort, rapport and persistence, I think.
But what kind of overall assessment would you make about the focus we seem to have in this country—and I am not referring to you, because you have this extensive list to show that you have been interested in a broad variety of people who are in prison—but what do you think the result has been of the general public media focus on the release of a few major dissidents? Has that been productive, counterproductive? Are we being manipulated on this every time we go to a major meeting or summit on the release of a major dissident, and that in turn is counterproductive?
Mr. KAMM. Well, I think the focus on one or two big-name dissidents to the exclusion of other dissidents or of other prisoners is not productive. I would not say that the release, even of one or two, is not welcome. Of course, it is. But I think the tendency has been to focus too much on one or two big names, instead of trying to cast the net as widely as possible.
We need to do much more in the area of basic research to uncover the names. Again, as I think I have demonstrated, if you let the Chinese Government know, especially at the central level, that you are aware of cases all over the country, the evidence suggests that in many cases better treatment and even early release ensues.
I agree with you. I think the argument that we are focusing too much on individual cases as opposed to systemic questions is a bit of a straw man. It is a false dichotomy. As I have made the point, we can really only understand a system insofar as it affects real people and real situations. China has a wonderful Constitution and all kinds of laws, but unless we examine how those laws are applied in real cases involving people, we don't really understand the system. If we don't understand the system, we can't talk about systemic change.
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Mr. BEREUTER. Thank you.
Professor Pei, I am aware of your travel schedule and restraints here, but I did want to ask all of you who care to offer an opinion, starting with you, what specifically has changed for the average Chinese person because of the legal changes that have taken place in the last several years? What difference does it make to the man and woman in Beijing or in the villages in the center of China?
Mr. PEI. Several things. First of all, their awareness of their rights is much higher today, partly because of the number of laws the Chinese Government has passed in the last 20 years and the knowledge of those laws among ordinary people.
Second, their standards of acceptable government behavior have also risen; things that, for example, they were accepting without complaining or without open protestation 10 or 15 years ago, today they will not accept anymore.
Let me give you a very immediate example. My brother-in-law was going to be laid off by his employer. The first thing he did was to consult a lawyer, and the lawyer told him not to resign, you have to ask him to fire you, because if they fire you, you will have these rights. Then your hand will be strengthened in bargaining. He told me that many of his colleagues who were facing layoffs also consulted lawyers.
So I think at the ground level we are seeing what I would call a popular basis for the rule of law. That is, the ordinary people demand law, and they think as long as they do not confront the government directly on political legitimacy or the right to rule the country, they are entitled to certain economic benefits, certain social protections, and that is probably the most important development in China today.
Mr. BEREUTER. Professor Pei, Premier Zhu Rongji has apparently a very long agenda of change. Among the important elements in it, pushed for by the need for WTO membership, we assume, is the reform and elimination of many of the state-owned enterprises.
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Do you see any reason why the Chinese Government would be pushed to slow down judicial reform, rule of law as a result of the need to phase down and out a variety of state-operated enterprises? Is this going to be a conflict? Your brother-in-law's example makes me think.
Mr. PEI. Fortunately, again, there are other sides to this changing situation in China. He found a job in the private sector in a firm invested in by a Hong Kong investor within 30 days. So expanding the private sector in China is certainly helping the restructuring of state-owned enterprises. Certainly the expansion of legal rights in China will complicate industrial restructuring, but if China does not reform, it will not have the financial resources to continue to subsidize those loss-making enterprises. So they have got to move ahead.
Mr. BEREUTER. Thank you.
I would like to open up my first question to any of the rest of the three of you who would like to comment upon it. What has this meant to the average Chinese citizen living in Beijing or a village in central China? How has it affected their life thus far, if it has?
Mr. CHOATE. It is obviously presumptuous of me to speak on behalf of 1 billion people.
Mr. BEREUTER. We do it all the time around here.
Mr. CHOATE. But just for purposes of analysis or observation, two things that one might be able to identify with the legal changes that have taken place, as opposed to simply the economic and social changes which have given the Chinese people a lot more freedom of action and weakened the government's hold over them compared to the past. These two aspects really apply to a way of thinking. One of those is a contract mentality. It is often said that for a rule of law to take hold, the sanctity of property, the concept that ''a deal is a deal'', and understanding what contracts mean in terms of mutual obligations has to take place. I think one perceives that happening as legal reforms are having a longer run in China, and that is a good thing.
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Second, at the local level anyway, what I would call a shareholding mentality is coming into being. Whereas before the average peasant or urban lane dweller in China ''served the people'', everything was given to the people, and they were to be appropriately grateful to the state, that is no longer the case. They now make decisions about and are responsible for paying for a variety of services and goods previously provided by the state. That includes the salaries of the cadre who work for them locally. As a consequence, they no longer see themselves simply as recipients of state gifts, but as the providers of the resources for those goods, and they demand accountability for that as a result.
So the contract mentality and the shareholder mentality are perhaps two of the more significant mental consequences of changes in the legal system.
Mr. BEREUTER. Thank you.
I think we need to conclude this hearing, but I want to give each of you an opportunity, beyond what you have given to us in the way of recommendations, to say anything else that you might want this Member of Congress or this Subcommittee or the Committee to do to improve the rule of law in China. What immediate kind of things, if any, do you have in mind for us?
Professor Pei, I am going to adjourn the hearing right after this, so if you want to be first and need to leave, I understand.
Mr. PEI. I think perhaps the Chinese legal community would benefit most by the knowledge of a Federalist judicial system, because China is politically and economically moving toward a Federalist system, but they do not know how complicated such a system is in the legal arena. So if we can send our Federal judges, State judges, or even Supreme Court judges to China to explain to the Chinese judicial community how the U.S. system works, they will understand better.
I think today if you read today's Wall Street Journal, China's economy is now trying to adopt the U.S. model. I think without adopting the U.S. judicial system, it will be very difficult for China to see its economic reforms succeed.
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Mr. BEREUTER. Mr. Craner.
Mr. CRANER. I would argue in favor of the general idea that the Administration has put forth in helping internal reforms in China. It is a new concept, certainly for the Administration, and I applaud it. I think it ought to be more broadly applied than just legal reforms. It would be a mistake to do otherwise because I think some of the changes in China are proceeding in an integrated fashion. Finally, I would just again caution on overspending in the first couple of years of such a program.
Mr. BEREUTER. Mr. Choate.
Mr. CHOATE. I have already indicated some of the project initiatives and a number of the selected areas that have been proposed under this joint agreement between the two governments: administrative law, legal education, legal aid and judicial-legal systems training. This effort recognizes the shortcomings and realities of the system as it exists now. Those are all programs that are doable, in a very short period of time, because discussions have been under way with various parties on both sides of the Pacific already.
Beyond that, I think that I would just conclude with an endorsement of this initiative as being very much worthwhile.
Mr. BEREUTER. Thank you.
I would ask the same question to you, Mr. Kamm, but you have a very specific kind of activity you have been involved in, and you mentioned some of the Members have been working with you on that. I think you can count on that continued assistance. Beyond that, is there anything you would like to say?
Mr. KAMM. Just two quick points that apply both to Chinese officials with whom you meet and, to a certain extent, to the Administration as appropriate.
First, to impress upon the Chinese Government how positively a large-scale release of prisoners by means of using the law as opposed to resorting to medical parole, of using the courts and perhaps the Supreme Court to issue a directive that would result in the release of hundreds of people, that would be one thing I would advocate.
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Second, and this references somewhat your previous question, to impress upon the Chinese how important it is to sign—not just to say they are going to sign, but to actually sign and to ratify—the International Covenant on Civil and Political Rights. This is a very important development, as I say in my testimony. By saying they will sign that covenant, they have in effect legitimatized international scrutiny and criticism. They can no longer claim it is interference with their internal affairs. I would like to see the Chinese Government sign the civil and political covenant before the President's trip at the end of June.
Mr. BEREUTER. I would certainly like to see that multilateral kind of standard or discipline imposed there as opposed to the United States being the country that seems to be alone sometimes in making suggestions or criticisms.
Gentlemen, thank you very much for your time this afternoon and for your testimony and recommendations and responses to my questions. You have been very helpful. And I thank the Subcommittee for its effort.
We are adjourned.
[Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]
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