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PROMOTING RULE OF LAW IN CHINA

ROUNDTABLE

BEFORE THE

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MAY 24, 2002

Printed for the use of the Congressional-Executive Commission on China

(

Available via the World Wide Web: http://www.cecc.gov

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

LEGISLATIVE BRANCH COMMISSIONERS

Senate House

MAX BAUCUS, Montana, Chairman

CARL LEVIN, Michigan

DIANNE FEINSTEIN, California

BYRON DORGAN, North Dakota

EVAN BAYH, Indiana

CHUCK HAGEL, Nebraska

BOB SMITH, New Hampshire

SAM BROWNBACK, Kansas

TIM HUTCHINSON, Arkansas

DOUG BEREUTER, Nebraska, Co-Chairman

JIM LEACH, Iowa

DAVID DREIER, California

FRANK WOLF, Virginia

JOE PITTS, Pennsylvania

SANDER LEVIN, Michigan

MARCY KAPTUR, Ohio

SHERROD BROWN, Ohio

JIM DAVIS, Florida

EXECUTIVE BRANCH COMMISSIONERS

PAULA DOBRIANSKY, Department of State

GRANT ALDONAS, Department of Commerce

D. CAMERON FINDLAY, Department of Labor

LORNE CRANER, Department of State

JAMES KELLY, Department of State

IRA WOLF, Staff Director

JOHN FOARDE, Deputy Staff Director

(II)

(III)

C O N T E N T S

Page

STATEMENTS

Opening statement of Ira Wolf, Staff Director, Congressional-Executive

Commission on China .......................................................................................... 1

Reinstein, Robert J., Dean, Temple University School of Law ............................ 2

Yuan, Nancy, Director, Asia Foundation ............................................................... 4

Kapp, Robert, President, U.S.-China Business Council ....................................... 7

Sullivan, William, Director, Executive Education Programs, Maxwell School

of Public Affairs, Syracuse University ................................................................ 10

APPENDIX

PREPARED STATEMENTS

Yuan, Nancy ............................................................................................................. 34

Testimony of Robert J. Reinstein, Dean, Temple University Beasley School

of Law before the Senate Appropriations Committee, Subcommittee on Foreign Operations .................................................................................................... 36

SUBMISSION FOR THE RECORD

Article from the China Business Review entitled, ‘‘Hope for China’s Migrant

Women Workers,’’ submitted by Robert Kapp ................................................... 40

(1)

PROMOTING RULE OF LAW IN CHINA

FRIDAY, MAY 24, 2002

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA, Washington, DC.

The roundtable was convened, pursuant to notice, at 10:02 a.m.,

in room SD–215, Dirksen Senate Office Building, Mr. Ira Wolf

(Staff Director of the Commission) presiding.

Also present: John Foarde, deputy staff director; Susan Weld,

general counsel; Jennifer Goedke, Office of Representative Kaptur;

Matt Tuchow, Office of Representative Levin; Arlan Fuller, Office

of Representative Sherrod Brown; Holly Vineyard, Department of

Commerce; Robert Shepard and Jorge Perez-Lopez, Department of

Labor.

OPENING STATEMENT OF IRA WOLF, STAFF DIRECTOR OF

THE COMMISSION

Mr. WOLF. I would like to welcome everyone to the fifth staff-led

roundtable of the Congressional-Executive Commission on China. I

am Ira Wolf, Staff Director. This is John Foarde, Deputy Staff Director. This is Susan Weld, who is the general counsel for the Commission, and we are surrounded by staff members of our commissioners who will participate in the question period.

Senator Baucus and Congressman Bereuter have instructed us to

hold these roundtables to delve in depth on issues of concern to the

Commission.

Let me just run through a few upcoming events. There will be

a full Commission hearing on June 6, it will be on the WTO [World

Trade Organization] entitled ‘‘Will China Keep Its Promises? Can

It? ’’ We also have additional roundtables on June 10 on Tibet and

Uighur minorities, June 24 on restrictions on media freedom in

China, and July 8 on village elections. You can check our Web site

at www.cecc.gov for details.

Turning to today’s roundtable, human rights cannot exist and be

protected without an effective legal system, without accountability

of government officials, and without transparency. But an effective

legal system does not emerge in any country spontaneously. It requires commitment by leaders, by officials and by the citizens in

that country.

Outsiders including governments and non-governmental institutions and organizations [NGOs] can help in training, in developing

an awareness of the importance of the rule of law.

Today we have four individuals with us who themselves, as well

as their institutions, have long experience in this type of work in

2

China. Robert Reinstein is Dean of Temple University Law School.

Nancy Yuan directs the Asia Foundation in Washington, DC. Bob

Kapp runs the U.S.-China Business Council, and William Sullivan

comes from the Maxwell School at Syracuse University.

You will each have 10 minutes for your opening statements.

Then we will turn to the staff for questions and discussion. We try

not to engage in straight Q and A, but try to encourage discussion

with us and among you four experts. So, we will start with Dean

Reinstein.

STATEMENT OF ROBERT REINSTEIN, DEAN, TEMPLE

UNIVERSITY SCHOOL OF LAW

Mr. REINSTEIN. Thanks, Ira. Thanks very much for the invitation. I will try to be brief. I am programmed to talk for 50 minutes

in class, so I will try to summarize.

I thought I would spend this time just telling you what we have

been doing in China and more specifically why we have been doing

it. Really it has been at the request of a variety of Chinese educational and governmental institutions. We were originally approached in 1995 by the Ministry of Justice and a national law

school, the China University of Political Science and Law. They

wanted us to consider starting a Masters of Law Program in Beijing for Chinese lawyers to learn about American and international

law along the lines of a program that we had already developed in

Japan. They said they needed this because with the development

of a market economy in China, they understood the need to develop

a legal system. The route they wanted to take in developing a legal

system was to educate a core of very highly trained lawyers and

government officials who would learn about the American legal system and international law and other Western legal systems and

adopt what they thought was appropriate, from that education, and

use that to develop their legal system.

When we started to develop the program, we began to receive requests from the Supreme People’s Court, and a number of government ministries to send students. We did start our first class in

1999 with 35 students, that class included 8 judges who had been

sent by the Supreme Judicial Court, they had actually nominated

18, we only had scholarship funding for 8. There were six government officials from a variety of ministries. We also had three minority students, that is non-Han Chinese, one of whom was a Tibetan lawyer and two of whom were Muslim attorneys from western China. We admitted three law professors and the remainder

were private lawyers.

The second class that entered in 2000 had a similar composition.

We have now graduated both of those classes as of this month. All

of our classes are taught in English and they are taught by U.S.

and Western law professors. We use the case method. Originally

the curriculum was very heavily business oriented, although even

in the first classes we were teaching American constitutional law

and professional responsibility.

We taught using the case method, both because that’s an excellent way of teaching about legal reasoning but also because we

thought it would be a great way to teach about how an independent judiciary operates, and the concepts of due process of law.

3

Our Chinese students actually were pretty startled when they

started reading appellate decisions in which the government lost

the cases, so they were getting that message.

Last year we broadened the curriculum to include courses that

were less related to business and commerce. One was a course on

labor and employment rights. The second was a course on criminal

procedure and trial advocacy. The students asked us to teach trial

advocacy. They wanted to learn how to try cases as American lawyers did. We put together a course in which we taught about American criminal procedure, especially the protections of the Bill of

Rights, and we taught trial advocacy and the students did a mock

trial. Each of the students did a mock trial, trying an American

criminal case based on American legal principles. In several of

those mock trials, by the way, the juries contained Chinese Government officials, the juries acquitted on reasonable doubt.

Another feature of the program is to teach legal research, especially legal research by computer. We’re doing that, of course, so

that the students can continue to access legal materials throughout

their career and continue to learn about what’s happening in the

United States and in the West.

The expansion of the program occurred I think because of the

success of the Masters Program. We started getting requests for

more and more educational programs. The first request came from

the Supreme Court, they wanted to educate more judges. They said

that the judges who were graduating from the Program were becoming division chiefs in their respective divisions and we could

only take a fairly small number of judges each year. They asked

us to try to take more judges into the Masters Program and also

construct more short-term training programs for additional judges.

We did secure additional funding and we formed a partnership

with other institutions which I can maybe get to later. What we

have right now happening is, right now there are 40 judges in Beijing from all over China, who are taking a 3-month course in legal

English that are taught by faculty from Brigham Young University.

When they complete that course, about 10 of them will be admitted

into the Masters of Law Program and about 25 of them will go to

New York this summer for a month-long training program that will

be held at NYU’s Institute for Judicial Administration. We expect

to do this each year so that we can reach a larger number of judges

in China.

Another request we got from the National People’s Congress

[NPC] and the Supreme Court was to form some working groups

on some proposed laws and regulations. We are now working with

the drafters of the new property rights law, in fact three of our professors are going over next week to work on that. There is a draft

property rights law that is going to be introduced in the National

People’s Congress. They are asking for our advice, really based on

how things work in the United States so that they can learn from

that. One of our faculty members is working with the Supreme

Court on a code of judicial ethics and we’ve also been asked to work

on a draft of a tort law which is going to be developed next year

in the National People’s Congress.

We have academic exchanges and joint research projects. A number of our faculty have been lecturing especially in the National JuVerDate 11-MAY-2000 09:34 Jul 12, 2002 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 80531.TXT China1 PsN: China1
4

dicial College. I’m scheduled to give a lecture on June 10 on judicial review.

The latest request we got was a couple of months ago from the

State Prosecutor’s office. They have asked us to construct an educational program for the prosecutors, which is just like the one we

have for the judges. They want to send about 10 prosecutors each

year into the Masters of Law Program and they also want to have

an intensive education program for about 25 or 30 prosecutors each

year along the same lines as for the judges where it is preceded by

a legal English program, and then we would teach them how American prosecutors try cases and how the offices of American prosecutors operate. The subjects they want covered are due process, the

rights of defendants in criminal cases, how to prevent abuses of

power by the prosecutor’s office, rules of evidence and how to use

the prosecutor’s office to deal with official corruption. We are hoping to be able to do that. We do not have funding for that project

right now but I think it’s an exceptional opportunity and that we

should really try to take advantage of it.

Our present partners in this endeavor, in China our academic

partner is Qinghua University, which has excellent facilities and a

pretty internationalized faculty. The Supreme Court and the National Judicial College and the State Administration for Foreign

Experts has been very helpful to us. Our partners here are New

York University Law School and Brigham Young University.

The other project that we are doing, which Adelaide Ferguson

just reminded me of, is that this summer we are having a group

of scholars coming over from China doing some joint research and

producing some papers on WTO and WTO implementation in

China.

We have also benefited from financial support from a lot of

sources. I think this has been a really nice example of a partnership between government, business, and academia. We have had

corporate support from a number of American and Chinese companies and foundations and we have also benefited from a grant that

we got from USAID. Thank you very much.

Mr. WOLF. Thank you very much. You have described a wide

breadth of activities and programs—very impressive.

Nancy.

STATEMENT OF NANCY YUAN, DIRECTOR, ASIA FOUNDATION

Ms. YUAN. Thank you. Thank you for inviting me this morning.

We’re delighted to present the Asia Foundation’s programs. As

many of you know the Asia Foundation has been present in China

with a program since 1979, so we will be celebrating an anniversary coming up soon.

Our law programs are conducted in the context of an overall program that focuses on governance, law and economic reform. We

also have programs in United States-China bilateral relations as

well as programs to support the NGO [non-governmental organization] sector and developing the role of women in society.

These programs are run from the Beijing office on the ground.

Our staff travel quite extensively, our director for program development is in Hong Kong because he also runs our Taiwan program.

So it’s within this context that we have a program in China.

5

The area of legal development is of course not new for the Asia

Foundation. For nearly 50 years we have been working in legal reform throughout the region and that includes both technical assistance programs, study programs to bring people to the United

States as well as travel throughout the region to give them a sense

of what kinds of law developments is occurring in different countries in Asia.

Our approach in China is basically the same as it is in other

countries, to identify the interests that are on the ground, to try

to look at opportunities where there is space for the kind of program that we would want to do. We are, in essence, a grantmaking

organization.

Our programs have worked effectively both with the Chinese

Government but also with the NGO sector and includes non-governmental organizations for instance, that run legal aid programs,

university programs to provide training for faculty, work with the

Supreme People’s Court, and other provincial courts and such.

To give you some context for what the Asia Foundation deals

with, when we conduct our programs on the ground. As an American organization, we have been one of few consistently working on

legal reform for the last 20 years. The other organization, as you

well know, is the Ford Foundation, and there have been exchanges

and programs with universities that have been going on for quite

some time. For instance, the Ford Foundation has a program called

the CLEEC Program which brought law faculty and lawyers to the

United States for a year of study. On the whole, the community of

people who work in the law development field are, frankly, not

American. The larger amount of resources and activities are conducted by the Europeans. The European Union has a very large

program of training with the Supreme People’s Court, it’s probably

about $15 million dollars a year. The Germans have a very large

program of legal assistance, both in technical assistance as well as

judicial training. The Canadians, the British, the Swedes, the

Danes, the Irish, just about everybody else has fairly significant

programs of assistance with resources behind it.

It’s in that context that we participate in two donor roundtables:

One on governance, one on law, about every 6 months, to go over

the lay of the land, to talk a little bit about what it is everyone

is doing. The Asia Foundation’s assistance is, in comparison to

those organizations, small. We need to look for a place that we feel

we can both make a difference, do some good work to advance legal

reform and protect rights of citizens in China, but also where we

aren’t swallowed up by some larger initiative where the funding

base and the effort level is so high that we are a drop in the

bucket.

Our law program at present focuses on 3 specific areas. The first

area is in the area of administrative law, in an effort to help define

government behavior, in terms of the arbitrary behavior of government officials under the law, as well as to protect the rights of citizens. It’s under these laws, that as many of you have read, that

citizens have actually sued the government and some cases they

win. I’ll talk a little bit about enforcement later, but it’s under

these administrative laws, that citizens are able to do this. In addiVerDate 11-MAY-2000 09:34 Jul 12, 2002 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 80531.TXT China1 PsN: China1
6

tion, it governs a variety of different activities that government officials undertake in their roles.

The Foundation has a project using American legal officials run

by Professor Stanley Lubman, who is a well-known legal scholar

and practitioner. He has assembled a group of administrative law

specialists and China law specialists into an advisory group working with the Office of Legal Affairs, to draft an administrative procedures act, which China currently does not have, but also to look

at other draft legislation in this field.

The other program that we are involved in related to administrative law is a WTO training project. The project brings together the

top 40 officials from every province in China, including the autonomous region of Tibet and Inner Mongolia, to look at administrative

law and the implications of WTO for administrative law. We held

a large training session in Beijing in March, a 6-day training session. The next phase of the project will be to bring those same officials into the United States and then to gather in a number of

months in Hong Kong to discuss what it is they have encountered

problems with in terms of the administration of their particular

programs in their provinces.

The second area that the Foundation works in is in legal aid. We

have had a program at the National Legal Aid Center for a couple

of years to fund the case-handling costs in some of China’s poorest

provinces. It’s basically a matching program funded by the Star

Foundation to provide case handling costs while the local government covers their operating costs in the handling of civil cases. We

have found this to be a very useful activity because it gives the

legal aid centers an opportunity to investigate cases, to gather evidence and information, and to enable them to pursue these cases.

The other area that we work in, in this particular field of legal

aid is a special program that’s funded by the Levi Strauss Foundation with migrant women workers in Guangdong Province to provide them with legal aid services as well as legal advice. They come

as migrant workers to this area without any rights because they

have left their home province. Oftentimes they are beholden to

their employers for everything: their living, their healthcare benefits, their childcare benefits and any other benefits that they do or

they don’t have. So the program covers counseling for them

through the Women’s Federation.

The third area of programming that the Asia Foundation is involved in in the law is public legal education. This is done both

through the legal aid centers, through a variety of NGO’s, the program that we have for migrant women workers does a great deal

in this area, but we have also funded the start up of some television programs. A program called ‘‘Let’s Talk About China Today,’’

which I talked about a little bit in my written statement, is a very

popular program that’s presented on CCTV, it’s widely watched, it

provides both case studies as well as gives legal advice on a variety

of legal problems that citizens encounter on a regular basis. It has

become very popular, it’s been replicated throughout the country.

I think for us it’s hard to believe that anyone would watch a program like this where you learn about the problems of ordinary citizens dealing with the law, listen to legal experts sitting on a television show explaining the law as it is under the Chinese system

7

right now and actually listen to legal advice—it’s not quite Perry

Mason—but it’s a start in promoting legal awareness in China.

While we feel that these programs are beneficial in and of themselves in protection of citizens rights, and to try to develop the

legal culture, it is not without problems that we have programs in

these areas. I think in the area of enforcement, I think, as you all

know, the Chinese are not fully able to enforce laws they have on

the books.

The second problem that our people who are on the ground identify most is the problem with public finance for the legal system.

The salaries of judges are problems for legal officials at every level

in being able to sustain reforms that are recommended by donors.

Once donors are gone, whether or not public budgets will be made

available, is a very big problem. We still believe it is useful to do

these programs. They are advancing what we believe is a culture

of the law. While there continue to be difficulties, we believe that

U.S. Government and Americans in general should be involved in

these activities. Thank you.

[The prepared statement of Ms. Yuan appears in the appendix.]

Mr. WOLF. Thanks very much. That is a very impressive set of

programs over the last quarter of a century.

Bob Kapp, please.

STATEMENT OF ROBERT KAPP, PRESIDENT, U.S.-CHINA

BUSINESS COUNCIL

Mr. KAPP. Thanks, Ira. John, could I ask you to send one copy

of the ‘‘Springtime’’ piece back? I didn’t keep one for myself. I’ll

probably refer to it as we go forward.

Let me first of all say thank you for letting me join you. We in

the U.S.-China Business Council feel that this Commission is a

very important thing, and we are pleased to see that in addition

to full hearings, the staff is getting together in this informal setting, which I think is terrific. I have no written presentation, and

I will keep my remarks very short in the hopes that we will have

more time for dialog. At some point, I would appreciate being introduced to those members and staff who are here and as to whom

they represent, it would be very helpful.

Let me say as we start, that in reference to the work of the Asia

Foundation, the new issue of our magazine, The China Business

Review, has a useful article by Zhang Ye, who represents the Asia

Foundation in Beijing, called ‘‘Hope for China’s Migrant Women

Workers,’’ it elaborates on some of the things that Nancy was saying. This, I believe, is available by hyperlink at the China Business

Review Web site which is www.chinabusinessreview.com., and if it

isn’t you may contact me and we will make sure that additional

copies of the article are made available.

[The information appears in the appendix.]

I really only have three things to say or four, and they relate

principally to what I’ve brought over today. I really strongly commend to you this rather long but important paper, by Randy

Peerenboom, of UCLA. It will be published in the Michigan International Law Journal this summer and then be part of a book, and

I think this Commission will do well to acquire when it comes out

in September.

8

Peerenboom is a well-known Chinese legal specialist and what

he’s done here is remind us that rule of law has many forms. He

distinguishes between two major types of legal systems and then

subdivides within them in fascinating ways that make it possible

for us, I think, to discuss much more meaningfully, exactly what

it we think we mean when we talk about the rule of law in China,

or what it ought to be.

Everybody loves rule of law, we all love rule of law, business

loves it, human rights loves it, everybody loves it. Most of us recognize that China is not the United States and it’s not going to be

the United States in our lifetimes, and that the meaning of the

term ‘‘rule of law’’ in China will undoubtedly reflect the realities of

the PRC [People’s Republic of China]. So, reading this is very important and I urge it upon you very, very strongly.

I also brought some reprints—I only made six, but I know the

Commission staff will have opportunity to redistribute them—of a

very, very good summation of rule of law work being undertaken

in China by many countries that came out in this marvelous publication, ‘‘The China Development Brief,’’ which is published in Beijing by a gentleman by the name of Nick Young. It contains a marvelous whole long section on law- and education-related work.

I think defining terms is important. I’m not going to lecture you

on how you define them, but I do think in this Commission, as in

all commissions that set out on a legislatively-mandated path, a

very serious definition of terms in order at the beginning, if your

conclusions and recommendations later are going to have a strong

meaning and strong effect, and that’s why I brought those along.

Now just briefly on WTO and commercial law, since we can take

this up in the discussion. This Council and I personally have never

claimed that China’s entry into the WTO or the passage of PNTR

[permanent normal trade relations], which was the major political

issue in the Congress 2 years ago, were themselves going to create

a two-party system or let thousands of prisoners out of jail, or for

that matter let anybody out of jail, or put anybody in jail. What

we do believe, and what I believe very strongly personally, is that

the decisions China has made ever since 1978, and especially with

the accession to WTO, to commit itself to legally binding obligations that require fundamental transformations of the way in

which the State operates within the economy and thus within in

the society, make very positive auguries for the evolution of a more

economically and socially diversified system in China, and with it

the expansion of the realm of law—as the friends at the Development Research Center of the State Council have put it in a paper

that they have written, ‘‘a society based on contracts.’’

The logic here is that China is obligated to behave according to

a set of WTO mandated behaviors, which are essentially the behaviors of an international market economy, the domestic environment

must, if it is to operate without sanction and if it is to operate to

China’s greatest benefit under WTO, continue to develop institutions and practices that are compatible with these larger international economic and commercial standards.

I think myself that there is over 20 or more years, a very substantial flow-on effect, if you want to call it that, from these legally

9

mandated aspects of China’s international and domestic economic

behavior. We can talk about it more later.

The third thing I want to do, if you’ll pardon me for approaching

the bench for a moment, your honor, is to show you some pictures

from my recent trip to China, for a reason. Here are three pictures:

One is a landscape, the next is a real state-owned enterprise [SOE]

in model railroad form that sits on a table in the head office where

you can take one picture of the whole thing. The third is a little

village up in the mountains with a sign about paying taxes. I will

now explain why I showed you these.

The first picture is a picture of the Jianmen Pass, which separates the province of Sichuan, with 130 million people, from the

province of Sha’anxi to the north, Sha’anxi is the dry, arid home

of Xian, the ancient Tang Dynasty capital, the gateway to Western

China. In this picture of this rock face 2,000 feet high, you can actually see people walking along this little path, one person wide,

cut into the rock cliff—and a Tang Dynasty poet wrote about this— about how difficult it was to get to Sichuan, more difficult than

‘‘going to heaven itself.’’ The reason I give you that picture is that it is sort of a stark reminder of the distance between the capital, if you will, and the remote provinces. It’s a sort of a metaphor for the challenge that any

regime, any government faces in China, in installing its word and

enforcing its word throughout the society and throughout the land

mass of China. We’ve talked about this; Nancy has talked about

the difficulty of enforcement at that level. When you really get

down to what it’s like to try to create a modern legal system in the

villages of remote provinces where it’s a 4-hour walk to the nearest

road, this photo is sort of a reminder.

The state-owned enterprise picture speaks for itself. That is a

classic SOE. Just to look at it is a reminder perhaps, of days gone

by in American East Coast and Midwestern cities, but it is again

a reminder of the magnitude of the social transformations that

China faces as it tries to turn these behemoths into market-oriented, profitmaking institutions, and as it tries to deal with the social impact of these transformations: The layoffs, the lack of social

insurance, the abandonment of the model by which enterprises like

that took care of the worker from literally cradle to grave, and his

parents and his kids and his sisters and his cousins and his aunts.

This photograph is a sort of metaphor, again, for the magnitude of

the social transformations that the Chinese have embarked on.

The third picture is just an exhortation on the side of a building

in a little village up in the mountains, again on a rural road, about

the fact that to avoid or resist taxes is to violate the law, and to

pay or cooperate in the tax process is guangrong, ‘‘brilliant and

bright.’’ It’s an exhortation to ordinary rural people out in the middle of nowhere that paying their taxes is good and honorable, but

not paying them is against the law. It reminds us that the task of

exhortation, which Chinese Governments have always had—the

moral exhortation to the masses from the moral center which is the

role of the state in that society, not ours, but theirs—the task still

goes on when it comes down even to things like getting ordinary

people to pay their taxes out in rural settlements far from the national or provincial capital.

10

I thought those were important things to touch on as we think

about what it means to create the rule of law in China.

The fourth thing—quickly before the yellow light goes on—to

mention is the U.S.-China Legal Cooperation Fund. It’s discussed

in this piece I wrote for our magazine called ‘‘Springtime in the

Pursuit of Justice.’’ Members of the American business community

that our Council embodies, have since 1998, on a voluntary basis,

put money into a fund to provide financial support in small or moderate doses for programs of legal cooperation between Chinese and

American partners across a wide range of legal subjects.

I want to give John Foarde, your deputy staff director, great

credit for his work when he was with us, in making that fund come

alive. It is an extraordinary thing. The money is small: $25,000

here, $10,000 there. The projects are great: we have 39 applications

for the next round which is coming up next month. They range

from legal dictionaries to WTO instruction, to women’s legal rights,

legal services for the poor, compatibility of Chinese labor law with

international standards, all over the map. The thing which is most

satisfying to me is to see tough American business people, whose

bottom line concerns are primordial, saying ‘‘Absolutely, this is a

great program,’’ giving money across the range of projects and subject matters that we have undertaken. It is very small. We don’t

kid ourselves that this is going to change the world, but we think

it’s a useful step and we hope that it reflects well on the American

business community. Thank you.

Mr. WOLF. Thanks, Bob.

Mr. KAPP. I do need those pictures back incidentally, I can make

copies if you want, if they are to go in the record, I’ll have copies

made.

Mr. WOLF. You are to be congratulated for getting the Legal Cooperation Fund started and John Foarde for his effective work on

it when he was at the Council.

Bill Sullivan, please.

STATEMENT OF WILLIAM SULLIVAN, DIRECTOR OF EXECUTIVE EDUCATION PROGRAMS, MAXWELL SCHOOL OF PUBLIC AFFAIRS, SYRACUSE UNIVERSITY

Mr. SULLIVAN. Thank you. I’ll also try to be brief. I’m going to

talk about the Maxwell School and our initiatives in China specific

to administrative law and rule of law. This is all in connection with

our broader set of initiatives—very specific to the field of public administration and its adoption within China. If I have an opportunity here later on, I would like to talk very briefly about the creation of the field of public administration in China because I think

it creates another interesting new avenue for promoting at least

more awareness of administrative law and procedure.

You will also note that some of my comments here will complement some of the thoughts and suggestions that Nancy made

just a few minutes before me. I would also, before I say anything

about what we are doing, I have to say a kind word about our

sponsors. Two of them are at the table here today and I want to

reiterate, and it’s come up and it will probably come up again in

our discussion, that our work—and ours is a very small initiative

within China—would not be possible without the support of the

11

Asia Foundation as well as the U.S.-China Business Council. It’s

critical and very important money because one of our big objectives

is to find resources on an annual basis to try to get our faculty and

practitioners to China to work with colleagues there and I want to

thank you on behalf of my associates at Syracuse University.

Maxwell’s rule of law initiative began when one of our Chinese

partners, the State Commission of Public Structure and Establishment Administration, asked if we would send experts to participate

in an administrative law conference they were conducting in Mongolia. Since then the Maxwell School and the College of Law at

Syracuse University have collaborated with Chinese legal scholars

and professionals, judges and government officials in their effort to

debate, develop, and draft administrative laws and procedures that

will define the role and responsibility of government agencies and

the civil service, a body of law that once adopted would be equivalent to the 1946 Administrative Procedures Act in the United

States.

Our program is small and our objectives are very simple; to provide a forum for the open exchange of thinking, experience, and information between the United States and Chinese legal scholars

and professionals, to develop training and teaching materials that

will educate Chinese scholars and government officials about proposed changes in administrative law, to create opportunities for

American legal scholars and professionals to learn from the Chinese experience, and to promote greater understanding in China of

the American model of administrative law. One of the comments

that Nancy made is critical here because everyone is coming in

with their own model of administrative procedure and law and it’s

being composed usually with very generous support of the national

government. [Laughter.]

Chinese partners, our partners over time have been some very

important ones. First the China National School of Administration,

which as you probably know is China’s leading training institute

for the training of senior government officials within China, established in 1993. We have been working with them since 1993 and

a lot of our work and training materials are used by faculty there

to inform government officials across the country about the rule of

law.

Their administrative law research group, led by Professor Ying,

China’s leading administrative law scholar and a member of the

National People’s Congress, and we also work with the Legislative

Committee of the National People’s Congress.

Since 1996, we have been following a similar course of activity

each year. Each year, our Chinese counterpart identifies what specific topics that they would like us to address that year. For example, we have looked at the judicial review process, the role that the

State Governments in the United States play in administrative

procedure, the public hearing process, administrative enforcement

of rules and the Freedom of Information Act. They will run a workshop that will last for a week, then a delegation is selected from

the participants, usually about five or six to come to the United

States to meet with practitioners and experts here during the

course of about 2 weeks. One of those participants in the delegation

then stays at Syracuse University for a semester taking courses

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and engaging in joint research with faculty. Over time this relationship has produced some books, articles, case studies, simulations and a lot of other materials that have been used to inform

Chinese scholars and professionals.

I can talk about the people that have been involved both in

China and the United States and I have lists of the participants

here, and it’s a very impressive one. Let me just talk about the lessons, what we’ve learned over time.

China’s commitment to the adoption of a body of administrative

law is currently strong and unwavering. In fact, the rapid development of the administrative law field is nothing short of remarkable.

In 20 years, China has moved from an operational environment

where only a vague notion of administrative law existed, to the

steady development of law and regulations designed to control

agency behavior and protect the rights of citizens. The adoption of

the State Compensation Law, the Administrative Punishment Act,

and directives on public hearings are recent examples of this activity.

According to Professor Ying, a draft comprehensive administrative procedures type body of law will be ready in late 2003 or early

2004 for review.

Second point, in spite of this dramatic reform effort, it will take

years for the rule of law concept in governments to become standard operating procedure. Given the size and complexity of the Chinese system, the potential for resistance and civil unrest, we

should have realistic expectations and maintain a long-term commitment to support ongoing reform.

Third, learning to utilize political opportunities to push for legal

reform in various sectors is essential for successful implementation

of new laws and regulation. An obvious example of what I mean

is China’s entry into WTO. Five years ago topics that would have

been too politically sensitive to discuss, such as the open government and transparency issues, are now freely discussed, analyzed,

and pursued.

Over the past 10 years, political efforts to curb corruption, reduce

the size of government, build a merit based civil service, and to realign the role and responsibilities of different levels of government,

have opened doors for change. Current political interest in environmental protection and in public finance have created additional

avenues for legal and regulatory reform. The other example here

is that 2 years ago, the State Council and State Education Commission authorized the creation of the field of public administration in

China and the developmental creation of the professional degree in

public administration. Twenty-four different universities across the

country were selected to develop and run professional programs in

public administration, and these will beginning this fall.

What’s interesting about this is that a curriculum has been prescribed by the State Education Commission, that stipulates courses

that you would all be very familiar with in a public administration

program, and one of the critical components of this program is

study of law and of rule of law. Thus creating another opportunity

for people to be able to discuss this issue.

What’s lacking here is what’s lacking in most of these efforts,

that there aren’t enough text books, materials, information, and

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the right way to teach these courses, and this is an issue that concerns us at the Maxwell School on a regular basis.

It will take the combined efforts of scholars and government officials to ensure the successful implementation of new administrative laws. In China, academics are routinely involved in the drafting of these laws. We would like to get back involved in this in this

country too, but—[laughter]—but academic input is not enough.

Scholars lack the practical experience and this deficiency often renders their vision of a new law as too idealistic and too complicated

for implementation. Bureaucratic ignorance and resistance often affects implementation as well. Legal reform requires not just new

laws, but the adoption of a culture of respect and adherence to the

rule of law.

In our experience, we have found in our program that it is essential to bring practitioners, scholars, and legislative staff together

and have workshops and discussion to develop relationships and

common understanding. These relationships continue after our programs and promote more effective and realistic practice of law.

Finally, the need to develop a rule of law in China has become

a Washington mantra, but while United States political interest

and support exists, the financial resources needed to support American involvement is lacking. Finding resources to support ongoing

projects is a constant struggle. This is why the involvement of the

Asia Foundation, and the U.S.-China Legal Cooperation Fund, the

Ford Foundation and American multinational corporations is so

critical to the development of rule of law in China. In comparison,

Europeans, Canadians, Japanese, and Australian Governments

provide much more for similar projects. We lag far behind these

other nations in what we can and should be doing. Thank you.

Mr. WOLF. Thanks very much, Bill. And thanks to all of you. We

will post the formal written statements on our Web site next week,

and we will post the whole transcript of today’s session on our Web

site in about 5 weeks.

I want to follow up on Nancy Yuan’s comments about the large

amount of money going to China from other countries and governments for rule of law programs and training. I’m trying to understand the implications of that for the United States. Maybe you can

start out Nancy, and I would like to hear from all of you on the

impact of this.

Ms. YUAN. Well I think it certainly gives people pause. I think

that one of the things that we have seen in terms of how the

United States is viewed, I don’t think it’s that the Chinese are not

interested in the American experience and American technical assistance, they definitely are. I think however, for the European donors who are putting a lot of resources, running programs, have a

lot of on-the-ground people who are actually in offices open and

available to them, there is a certain amount of leverage that you

get from that. You get access to seeing draft legislation because you

are there on the ground. You are able to give the kinds of suggestions that you might want to give to the right people at the right

level because you actually have some kind of investment in the

process.

For Americans who, particularly those in government, who come

and go—if you go on a study trip and there’s a lot of celebration

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and I don’t even know what you want to call it—surrounding a trip

and then you leave, then the Chinese are left with ‘‘Well they want

to help us, they are really interested in what we are doing, they

left us with these sort of guidelines of criticisms of what we’re not

doing, now what do we do? ’’ I think that there’s confusion on the

part of the Chinese who are hearing that the United States is very

much interested in helping with things like WTO compliance, very

much interested in offering training programs and assistance and

nothing is forthcoming. Whereas, I think for European donors who

are on the ground and have people available who are actually visiting them on a regular basis asking them ‘‘What are you working

on now? ’’ and ‘‘How are you doing and is there something we can

provide to you? ’’ you get a lot of leverage from that.

Mr. WOLF. Anyone else? I would like to get into the implications

for U.S. national interests. On a recent trip to Beijing, some people

told me of their concern that the United States legal methodology

and standards were being adopted less than one would hope because of the imbalance in training and funding.

Mr. REINSTEIN. Yes, I think that’s true. I would just mention the

two ends. One is actually from the perspective of legal education.

A lot of how our legal system develops derives from how we teach

in law school. American legal education is very different than European legal education, very different than legal education in most of

the rest of the world. We think that it’s better, but it is certainly

different.

The Chinese model of legal education now is heavily oriented toward the European model. Even in drafting legislation we are

starting with European codes. Now, oddly enough—changes taking

place in other countries—the Japanese have adopted wholesale, the

European method of legal education. Now they don’t think it works

and they have started 20 law schools on the American model,

which is a fascinating development but, in China where we could

have more influence there, there is very heavy influence coming

from the Europeans and their civil law system. I think it’s plain

both in terms of how they are teaching law in the law schools, and

how that is then translated in the premises and what they are

starting off with in new legislation.

Mr. WOLF. Bob, Bill.

Mr. KAPP. Ira, I would just say that you know, the impetus behind American activity in China since about 1835 has often been

that ‘‘we’ve got to get in there because otherwise the other powers

in the great power scramble are going to get there first.’’ That is

an easy way to make a compelling case in the United States and

in some cases certainly from a commercial standpoint, American

companies that are accustomed to working in an American legal

environment would be delighted if the Chinese legal codes all

looked just like they did in Cincinnati, but actually, for a commission like this the issue is, I think, where is Chinese society going?

What role does the establishment of a stable, transparent, largely

equitable legal system with integrity have in that process? I would

say that, this is the interest of the United States. The interest of

the United States is in China becoming a society that treats its

citizens less arbitrarily and less capriciously and which operates

according to certain global standards of behavior, many of them

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rooted in law, but not necessarily in law as it is practiced in one

country or another. So my feeling would be that of course we

should be active, and certainly I can’t imagine that more Chinese

students do not come to American law schools than any other country’s law schools, it’s certainly the case in every other kind of advanced education.

I think we should welcome and increase as much as we can the

exposure of our Chinese friends to the way our legal system works,

but at the end of the day the goal here is not a kind of a missionary goal of having everyone believe like the missionaries. It’s

that China takes a path which creates a more equitable society and

a more dependable society in which the role of a state, vis-a-vis the

citizenry, is bounded in the ways that Bill and others have spoken

today.

Mr. WOLF. Thank you. John Foarde.

Mr. SULLIVAN. I just want to say, I think the resources are critical but at the same time, I often have said to myself, ‘‘I’m glad we

don’t have government support,’’ because it would affect the way

we do business within China itself. There’s less freedom in many

respects when you do receive resources from the government. I

have had some experience with government agencies that have

worked with us. I do think on the other hand that there are programs—and I’m not suggesting that we get involved in a discussion

about money—but there are programs like the Mansfield Fellows

Program that would make connections as they do in Japan, between our best people in government to build connections with Chinese Government. In a small way I think the Mansfield Program

has 20 people they work with on an annual basis. They spend a

year or more in Japan developing relationships. Programs like that,

that really connect people to people are really the most important.

Mr. WOLF. Thanks.

Mr. FOARDE. Thank you. A specific question for Bob Reinstein

please. I was fascinated by your reference in your remarks to

teaching legal research by computer and wondered what is your

sense of how much PRC law, statute, court decisions, etc. is available online in China.

Mr. REINSTEIN. I think very little. They do not, in terms of judicial decisions, they don’t have a reporting system there. So it’s not

just that it’s not available online, but very few decisions are available in books. I think that it’s different with statutes, and one of

the major changes—I think Nancy was referring to this—one of the

major changes that’s taking place over the last 5 or 10 years in

transparency has been the publication of statutes and regulations.

That has not filtered down yet to the court system, although the

judges are very interested in developing this.

Mr. FOARDE. This ties into my second set of questions, really to

everyone. I’m interested in the whole question of how you get training and information on all these things we’ve been talking about,

from the national level to the provincial level to the local level. I

think those of us who worked on this in the context of business and

commercial law and disputes, understand that at the local level is

where the rubber meets the road. In all the other aspects that we

are concerned about as well: In legal aid for the poor, in citizens

being able to assert their rights against abusive state agency or

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state actors, a wide variety of things, freedom of speech, freedom

of assembly, freedom of religious practice, it’s at the local level

where these things need to be done. So my question to you all is,

‘‘Is there some way that the U.S. Government, through a program

could be involved in helping to spread the level of training and the

level of penetration of this information on legal reform and rule of

law? ’’ Mr. SULLIVAN. Just from the government perspective—the government officials and bureaucrats in the country—there’s a network that does exist that’s helpful, I mentioned it, the China National School of Administration. They have relationships with provincial schools of administration in every one of the provinces,

schools of social science and public administration that exist in municipalities, and there are also county schools of administration,

they are all desperate for material and information and once these

things come to the top obviously they just flow down naturally to

these other institutions. There is a lot of interaction and exchange

between all these groups. That’s one way to get information out

and I think that having relationships with these institutions to develop curriculum, new topics, new ideas is very critical.

Mr. KAPP. Could I add just a word on that, John?

Mr. FOARDE. Would you?

Mr. KAPP. One of the interesting things about the knowledge of

law and of citizens prerogatives within the law seems to spread in

China is in the media. In fact, I think it is interesting how many

people watch television programs about law. We watch our Greta

Van Susteren I suppose, and our ‘‘People’s Court,’’ so it’s not entirely that one country is fascinated and the other isn’t.

Mr. FOARDE. I know you are a Judge Judy fan. [Laughter.]

Mr. KAPP. Her cases are a little different, but one of the really

interesting things is that there really is a clearly emergent pattern

in Chinese reporting of official abuse. That’s legitimate. You can’t

denounce the senior leaders of the Party, but you can take up the

case of somebody who was injured on the job and was stiffed by the

local party committee and who went to somebody else for redress

and was stiffed by him or her. That whole process of exposing

grievances—it’s in a sense a very ancient Chinese process—exposing grievances of people against authorities is enshrined in lots of

local press. If the United States Government said, ‘‘we would like

to start funding journalism fellowships for Americans to go over

and advise local newspapers about how to report better on the

law,’’ because at bottom, it is worth remembering that the question

of whether or not the United States Government is a friendly government with regard to the basic institutions of the Chinese political system is in doubt in China. Therefore, every time the government puts its imprimatur on something, as Bill suggested, the

question immediately arises as to whether this is part of an unfriendly act by American Government which, in fact, would like to

see the Chinese system of government transformed or even demolished. I’m not suggesting that the U.S. Government wrap its mantle around expose ́ reporting by local journalists, but there is something to think about in that field because that kind of journalism

does play a very real role.

Mr. WOLF. Thanks.

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Mr. KAPP. Incidentally, I apologize and from now on I will talk

less.

Mr. REINSTEIN. Could I say a word about this? When we talk

about the rule of law, and Bob is correct, there’s a lot of definitions,

one of course is the definition antithetical to ours which is rule of

law means that law is an instrument of rule. But when we talk

about the rule of law we are talking about principles of transparency, we are talking about principles of how laws get enacted.

Then we are also talking about enforcement problems, which

Nancy referred to, that relates to the government officials, but ultimately, in any system of rule of law, it ultimately comes down to

the courts. It always comes back to the courts. You cannot have a

credible legal system unless you have judges who are well educated, honest, and independent. This is one of the reasons that, in

our program, we have spent so much time trying to focus on the

judges. This is I think, one of the greatest challenges that China

has, both at the national level but especially at the provincial level.

Until very recently, judges did not have to be lawyers, they

weren’t lawyers. It was only a couple years ago that the National

People’s Congress required all new judges to be lawyers. Most of

the judges in China have not been legally trained, and of course

they see themselves as part of the government. If you ask American judges, ‘‘Are you government officials? ’’ you get a strange answer. They say ‘‘No, we’re not government officials.’’ Even though

they are paid by the government, they have offices that are paid

for by the government, they have law clerks paid for by the government, but they see themselves as separate from the government.

Their role is that the government is just another litigant in their

courts. That, of course, is not the view in China. The view in China

is that the judges are part of the government and a subordinate

part of the government at that. Also the judges are not well paid,

which of course is an invitation to corruption. So there is a massive

problem that China has in reforming the judiciary and no one is

better aware of this than the Supreme People’s Court of China,

which is one of the reasons I think they are asking for all of these

educational programs, to help deal with this. This is a problem of

an incredible magnitude both just in terms of numbers, where you

have over 100,000 judges, and in terms of a difference in education

and a whole difference in a way of thinking, if we really are going

to have a real legal system in China.

Mr. WOLF. Thanks. We are making one change to the

roundtables. Now that we actually have staff members on the Commission with real expertise in particular fields we will include our

staff expert in the discussion. Susan Weld.

Ms. WELD. Thanks, Ira. It’s great to hear all the testimony today.

I’ve been looking at some of the rule of law programs now and over

the course of my career for a long time and there are two issues

which I have always thought were important. One boils down to

the fact that your Maxwell School and Temple School of Law efforts are elite programs, training elite corps of officials to do certain rule of law functions. One issue is ‘‘intake,’’ where do the people who come to be trained come from and how do they get there?

And the other question is ‘‘after care.’’ Sort of like a pregnancy program: When students get out of your programs, are they connected

18

and supported? This is important because they go out to work in

society and very often the things they’ve learned in a brief period

of their life may disappear. It would be great if there could be some

fixed way of remaining in contact and maintaining all the progress

that’s made.

Mr. SULLIVAN. These individuals are selected by the Chinese and

Professor Ying and his colleagues—we have talked to them about

what works best—in a group as I mentioned, they like to get a mix

of scholars, practitioners, officials, bill drafters, law drafters, and

others that might be involved in the process. The individuals that

they have selected over time have been very interested, competent,

and appropriate for the exercise that we have. If there is also a

specific interest in, say, administrative hearings of the judicial

process that brings into the organization as well.

After they have participated in this program and they go back

to their institutions, because we have made this contact and have

this relationship with them if we can, and if they need support

from us either through new materials and additional information,

we give it to them. We either get it to them through Professor Ying

or the central source and distribute it out or they can deal directly

with us.

Mr. REINSTEIN. Our students are nominated by the courts and

the agencies, and then we select from the pool that’s being nominated. One of the criteria for admission is that they have very good

English language ability; therefore they tend to be younger. Because the Chinese are making a very big investment in sending

them to this program, both because they are bearing a portion of

the expenses and because they are really giving up somebody’s

work for a year or 2 or 6 months or however long the program is— bcause these are relatively long programs they are picking people

who they think are the up and coming stars.

We are going back next week to China, to talk to some of our

graduates to see what they’ve been doing since graduation. As with

the people involved in the Maxwell School, they are going back to

their agencies. In fact, I think some of the agencies have made it

a requirement for their attendance in the program that they come

back to work for the courts and the agencies, because they did have

a concern that the students would come into this program and get

this masters degree and then go into private practice and make a

fortune. So they did require them to come back and work as judges

or government officials for a certain period of time. What we’re

going to do is we’re going to be doing periodic interviews and staying in contact with the graduates of the program. We did get a report from the Supreme Court, I think I mentioned this, that they

are taking the graduates of the masters program and making them

division chiefs. We’re hoping that—with the law professors we’re

teaching too—we’re hoping that what we’re teaching does have a

sort of a ripple effect, that the people will learn from these programs and then use it to teach others.

Ms. WELD. Do I get a follow up?

Mr. WOLF. Sure.

Ms. WELD. I want to ask Nancy and Bob also, some of the work

you’re doing is the other half of the Temple and Maxwell story. You

are training rule of law elites but some of what the Asia FoundaVerDate 11-MAY-2000 09:34 Jul 12, 2002 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 80531.TXT China1 PsN: China1
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tion and the Legal Cooperation Fund do is how to make sure that

the rule of law structures actually reach the people at the bottom

of society who need that kind of support. I’m wondering about some

other areas I haven’t heard of yet. One is the insurance area, pensions and health insurance. The question is whether there is any

way in which we could do rule of law technical assistance to enable

people who are laid off from these State owned enterprises and so

on to get that kind of help. We in the United States have a lot of

experience in that, could we do that kind of thing and Nancy any

of your thought in this area, Bob also.

Ms. YUAN. Do you mean in terms of—— Ms. WELD. Helping both government agency and local legal aid

sectors try to get that kind of assistance. Some of the state-owned

enterprises offer these benefits and some benefits are offered to one

kind of employee over others. In some cases, the benefit is not what

it’s said to be in the beginning. As we have seen in Daqing, there

can be unrest over that kind of a question.

Ms. YUAN. I would have to think about how we would do that.

It is true that we work in large part in our legal aid programs on

the demand side. That people who, for whatever reason, have either been laid off of work, have been injured on the job, have not

received whatever benefits they thought they were entitled to. The

problem in some cases is that the judgment may be against someone who has no assets. Or the state-owned enterprise is not providing the services because they don’t have the ability to do that.

So I’m not sure what you mean by technical assistance in helping

them to structure the benefit better, or—— Ms. WELD. I guess that was a double question. The technical assistance would be at the agency level to actually work out the insurance program and pension programs. There are pilots being

drafted especially in the cities, Shanghai, Tianjin.

Ms. YUAN. In the rural areas I think it would be very, very difficult, because it is a resource question. It’s the ability of those government officials to, if they were to say, ‘‘We have a plan for you,’’ the state-owned enterprise would ask, ‘‘how much does it cost? ’’ What would we have to do and how would we have to do it? It

would be an ongoing process of discussion, and I’m not sure how

a foreign organization necessarily could get in that mix without a

lot of groundwork.

Just as a step forward, in terms of programs that we run on migrant women labor, they were 3 years in the planning before we

were actually able to get government approvals, to get the Women’s

Federation to feel that this was a safe activity for them working

with these ostensibly illegal workers in these factories. It does take

a little time to get these things going, but we would certainly think

about it.

Mr. WOLF. Thanks. Next is Holly Vineyard, who is from the Department of Commerce and works for Undersecretary Grant

Aldonas.

Ms. VINEYARD. Thank you all for coming today—the day right before a long weekend and beautiful day at that. I really appreciated

hearing your testimony.

I would like to follow up on Ira’s question in which he asked you

to look at the broad national interest. When you look at other naVerDate 11-MAY-2000 09:34 Jul 12, 2002 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 80531.TXT China1 PsN: China1
20

tions, especially the European donors’ technical programs, do you

ever find anything that might be at odds with our commercial interests? In particular, I have heard some concerns about their

standards training programs, in particular?

Mr. KAPP. Holly, that question sort of logically falls to me, I suppose, because I work for a business organization, but I have to tell

you I don’t know. I could certainly talk with our people in Beijing

and possibly even with certain staff members in Washington whom

you and I both know, who are closer to the daily work of our companies in China than, in fact, I am and see whether we could get

a bead on that, but I just don’t have an answer. I’m sorry.

It’s an interesting question—if one discovered, as one has discovered in the past with things like tied aid—that our trade competitors in the China market are really attempting to create institutional mechanisms within Chinese Government organizations and

in their processes which by definition create non-tariff trade barriers, for example: No vehicles over 2,000 cc may be imported,

while most American cars are over that limit and most cars from

country x are under, if we were getting into that kind of thing, I

think your question is very well taken. That would be a matter of

real concern and would dictate that the Americans get in there

with both feet just on a rather crass, don’t-let-the-other-guy-getthe-better-of-us basis. I took Ira away from that a moment ago with

my sort of broader point about this Commission and its interests

in broad social evolution in China, but you represent the Commerce

Department on this Commission and those are very tangible and

real issues.

Ms. VINEYARD. Thank you. I am curious too, about how your organizations measure effectiveness in the training programs; if you

have any metrics that you use, I would be interested in hearing

about those.

Mr. SULLIVAN. Well, we use the standard material evaluations

that we conduct every time we run a training session. Because we

maintain relationships over time, we are able to see if a program

on judicial review, for example, had any sort of impact in the way

the thinking or the drafting of a law has occurred and we are able

to follow up on that. Generally, the evaluations have been favorable

and supportive and we are seeing that our involvement has been

able to create an environment where we can openly discuss these

issues and has produced some outcomes in the way of interesting

drafts of new laws being proposed.

Ms. YUAN. In terms of the legal aid programs, you look at the

numbers of cases handled, what were the judgments on those

cases. You look at what the follow up activity is, if you’re working

with a non-governmental organization that’s delivering the services, did they deliver the services? What’s their next step, what is

the planning process in terms of continuing the program? We have

a variety of ways to measure activities. At the end of every grant—

we both do a mid-term evaluation and ending evaluation for the

grant—and are basically hand in hand with the organization all

the way through.

Mr. REINSTEIN. While we have the standard evaluations from the

students, we also have some outside evaluations that take place

from our sponsors. We are doing followup interviews now with our

21

graduates to see what effect the program had and what positions

they are taking and what’s happening. As with the experience with

the Maxwell School, to the extent that we are discussing that we

are asked to give advice or to have input on proposed legislation

or regulations, it’s pretty easy to determine whether any of that advice or input had an impact when you look at the final product.

Mr. KAPP. As you may know, the U.S.-China Legal Cooperation

Fund is tiny. It is so tiny, in fact, that it has no paid staff at all.

It’s entirely volunteer. We decided at an early point that we had

one financial challenge and one measurement challenge. We were

uneasy about just sending dollar checks off to Chinese recipients

and saying ‘‘Have a good day.’’ We generally make the payment to

the American partner organization in the bilateral cooperative effort, whether it be the American Bar Association or Asia Foundation or Maxwell or anybody else.

We have asked for and have received reports, at the conclusion

of the activities for which our money was spent. Sometimes that

money was on a conference; often that money is spent on something written, a study, a document and that represents if you will,

100 percent achievement. We get a copy of the paper. What we decided at an early point was that we simply didn’t have the resources to do, with our grants also being as small as they are, was

an extensive real foundation-style financial and performance audit

afterward. Basically, the report that these projects send into us

represents the completion of their requirement, if they don’t do it

they better never come near us again. But we do not have a way

of saying how many people achieved legal justice at the legal aid

office upriver as a result of the $5,000 or the $10,000 that we gave

to this program in 1999.

Ms. VINEYARD. Thank you very much.

Mr. WOLF. Next is Jennifer Goedke who works for Congresswoman Marcy Kaptur.

Ms. GOEDKE. I would also like to thank each of you for coming

in today. This has been very helpful.

We as a United States Government may not have a lot of power

influencing the Chinese Government when it comes to rule of law,

however we may have some influence over United States businesses and other NGO’s who are active in China. I guess my question is for Mr. Kapp. How does your organization encourage your

member companies to either implement internationally recognized

labor and human rights law, or if not implement, how can they be

more supportive of rule of law efforts within China? I know that

during the PNTR discussion every business was ready to get in,

and looking forward to having a billion more consumers for their

products. As the companies move in, what are they doing to implement what we would consider American values or internationally

recognized labor and human rights?

Mr. KAPP. Well, first of all, the ‘‘a billion customers’’ thing is a

canard and American companies by and large do not subscribe to

that. It’s been around since the 19th century and there were times

in the past when people said, ‘‘If every Chinese family used a knife

and a fork our Sheffield Mills would produce knives and forks forever,’’ but we’re way beyond that now. American companies in

China realize that this is a very difficult place to operate, that the

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realization of economic benefit there is never easy and often slow

in coming.

On the matter of implementing of values, this is a personal matter now—I’m not speaking for the companies—because you understand, Ms. Goedke, we don’t speak for individual companies. We

are an umbrella organization with a lot of company members, but

they conduct their own affairs and I would never say ‘‘GE does

this’’ or ‘‘GM does that.’’ It seems to me the issue is living and acting in accordance with your values and I would suggest that most

American companies in China have not acted differently in China

than they would in other societies, including our own society as

they go about their work. That’s not to say that they do not find

morally challenging situations in China. No one who goes to China

can fail to be there for more than a week without recognizing that

things do not run the way they do here and in some ways it can

be very perplexing. I think Americans and the companies who go

to China conduct themselves as they would elsewhere. That is certainly true with regard to human resource and management issues

and I guess that’s really all I can say on that.

What the Council can do—and in fact I’ve tried to move the

Council a little more in this direction—because it doesn’t always

come naturally and easily to people who on a daily basis are selling, marketing, looking at the bottom line, reporting to the stock

analysts and so forth—is to urge and encourage these companies,

on a voluntary basis, to get involved in activities that do support

these goals. I think the Fund, which I don’t want to get too sanctimonious about, has given us a chance to put company money into

something that I think is useful in this regard.

Even in the next to the last issue of the China Business Review,

there’s a lot of stuff on corporate responsibility: Examples of ways

in which companies have done well and so forth. This is a chance

to inform, through the Council, the business community on best

practices, good examples and the like.

I do think it’s important to start from the understanding that

American companies, when they are in China, are American companies. They have their foibles—just look at what’s happened in

the United States in the last 6 and 8 and 10 months. The Chinese

are intensely aware of some of the failings of our system of rule of

law for example, that have come bursting to light in the last 8

months here in this country. But they do not get over to China and

say, ‘‘Now we are in the heart of darkness. Now we can really give

vent to all those disgusting practices that we would never dare to

try in the United States.

Ms. GOEDKE. Thank you. My second question, since I have just

a few minutes remaining is for Ms. Yuan. I was interested to hear

about your program for migrant women workers. What are some of

the legal challenges that are unique to women in China?

Ms. YUAN. Healthcare. For migrant women, they come basically

from mostly poor areas to look for work. They have no status where

they come to live, so they are basically beholden to the factory

where they come to work. In their previous place of residence, usually they either have a job or no job, but their housing is taken care

of, their health benefits are taken care of, their childcare—if they

23

have children—is taken care of. When they come to be workers in

another place, they don’t necessarily have those benefits.

There are all kinds of problems, there are access to healthcare

problems. For instance, if women want to get divorced, there is no

way that they can do that if they are in another location. If they

have a dispute over property back in their home place with their

family or if they have family problems of any kind that need to be

adjudicated in some other way, other than through their family,

they don’t have any access to legal assistance. There are a wide variety of problems, domestic violence problems, abuse within the factories, factory conditions, there are many problems that afflict migrant workers, but women in particular.

Ms. GOEDKE. Thank you.

Mr. WOLF. I think that’s an excellent question. Susan Weld is beginning to develop a roundtable for October that would deal with,

political and economic empowerment of women, as well as another

roundtable perhaps also in October, on health issues, which would

include women as well as men and children, so we do hope to get

into more depth on those issues.

Next we have, actually, two people here from the Department of

Labor, but only one of them is going to be able to talk. Jorge PerezLopez and Bob Shepard represent our commissioner who is the

Deputy Secretary of Labor, Cameron Findlay. Bob, please.

Mr. SHEPARD. Let me ask if any of you have done any work in

the area of rural workers or if you know of programs that deal with

peasants or farmers that are about three-quarters of the country.

Mr. Kapp showed a picture of a wall sign that exhorted farmers

and rural people to pay their taxes. The basic economics in a lot

of these rural areas are such that taxes are something like $300

per year in many places in areas where per capita income is $150

to $200 per year. Are you familiar with the legal programs or how

the system in some of these places operates and whether anything

is being done to address the problems of these people?

Mr. KAPP. I think now we are onto something really important

and it relates to women moving to the urban coastal production facilities and everything else. China has a very significant social crisis in the agricultural sector, which of course is, as you say, most

of every province.

I read, on the way out and on the way back, a book by a figure

who used to be a very low-level party cadre in rural Hubei Province, about his experiences. He published it in Hong Kong, I actually pulled it down off the Internet. You’re right, and I’m delighted

to know that somebody at Labor is onto the massive dimensions of

this. Crop prices drop—and they will drop more, I might say, as a

result of this Farm Bill. The basic field crops grown by the peasants are now in adequate supply and the price is going down. The

more it marketizes, the more the price goes down.

As the central government diminishes its oversized bureaucracies

as a part of its reforms, it essentially throws more unfunded mandates—to use a 1990’s term—down onto the local levels of society

without paying for them. The cadres at the local levels hire more

and more of their brothers and sisters and cousins into what is

called ‘‘eating imperial grain’’, which is to say the government payroll, because it’s better than growing crops all day long.

24

The personnel levels at the local level metastasize but there’s no

money. The lowest level officials have to send their tax revenues

up through the system. Taxes therefore become so heavy that it

doesn’t even pay to farm anymore, you can’t farm. You leave the

land and head for Shenzhen, to try to get a job in a factory because

the farm economy can’t support you anymore.

In the meantime, with all due respect to Nancy, healthcare in

rural China is essentially no longer available through the government. Part of the whole process of turning to the market economy

and getting the government out of all these ancillary businesses

that used to be the socialist, sort of all protective system, is that

they disassembled their healthcare system. But what you’re onto is

a crisis at the bottom of rural society which leads to these migrations and to the creation of this labor force, and it’s not going to

go away soon. I think as to legal protections in that environment,

this book was written by an admittedly disillusioned party secretary, but my hunch would be that it’s a tough road to find a functioning legal system that is protective of individual rights in that

environment.

Now, there are cases where justice is sought, not granted and the

person goes to endless lengths to achieve redress. There are movies

about this; you’ve seen the movie, ‘‘Qiu Ju Da Guanzi,’’ for example. Here is a movie about a woman who seeks redress because

someone beat up her husband and she goes up, and up and the

whole movie is about this one woman seeking finally to get redress.

There are lots of cases of that. The media play their role, but, as

a systemic coverage of rural and peasant society, it’s going to take

a long time, and it’s very difficult because in many cases the interests of entrenched local elites at the bottom are endangered by the

notion of implanting this kind of justice system. That’s really where

the crisis of the old society is being played out. My own view on

this is—and I know we are coming to the end—my own view on

that is that it is in fact the only way this is ultimately going to

be achieved over decades is going to be as the consciousness and

the practices that link the upper levels of society, the central government, the new mentalities of the more sophisticated levels of society permeate downward and downward through the whole country. It’s bigger than anything in this country that I think we’ve

ever seen.

Mr. WOLF. Next is Arlan Fuller who works for Congressman

Sherrod Brown. Congressman Brown is the newest member of the

Commission, named 2 weeks ago.

Mr. FULLER. Actually, as Ira said, Congressman Brown is newly

appointed to the Commission, this is my first opportunity to participate with the Commission. I have certainly found this discussion to be a great benefit and I look forward to working with all

of you in the future.

My first question, Mr. Kapp, you had said that China is not the

United States, and will not be the United States at least in our lifetime. Change is difficult for everybody. You’ve been working with

legal reform in all of your programs. What areas of the law have

you found the Chinese Government to be most receptive to and

which areas do you find multiple roadblocks toward legal reform?

25

Mr. KAPP. Sir, you used my name because of something I said,

but you also invited others to comment. I have talked so much, I

wonder if I could invite others to pick up their end of it.

Mr. SULLIVAN. I would say that it’s been my experience because

we were working there, that trying to develop rules and regulations

to govern what the government can do and not do, working toward

this Administrative Procedures Act, which would be a great opportunity and a huge reform, and then using getting people to live by

that within the government, there’s a lot of receptiveness to do

these activities and there is a recent history of a lot of reform having to do with administrative change. So I would say there’s a

great deal of openness here about having specific reforms being

achieved and doing it well.

Mr. REINSTEIN. In the educational programs we have been running, there has not been any kind of resistance to any subject.

They are interested in everything. In the earliest classes, we

taught American Constitutional law, including freedom of speech,

and it was not a problem. I was actually surprised at how interested they are in American criminal procedure, because there was

a conventional wisdom that, this was an area that we might want

to be careful about, but they were very interested in that. They

were also very interested in labor and employment rights. I think

there is a tremendous interest among the Chinese about learning

a lot about other legal systems. As Bob Kapp says, how they develop their legal system is certainly not anything that anybody can

predict, and it’s not going to be a clone of ours or a clone of any

other country’s. It’s going to be highly dependent on the political

and cultural and social situation in the country. In terms of learning about how other countries, including the United States, have

operated a legal system or what legal principles apply here, and

how we protect rights in the United States, and how we have an

independent judiciary, and how we actually control the government

through the administrative law system, these are matters that the

Chinese are very, very interested in.

Ms. YUAN. I think there’s a great openness to learning about

other systems and learning about the various aspects of law. It’s

a matter of what happens to it once it goes into this relatively nontransparent system of government. Sometimes it comes out as we

might expect and sometimes it comes out in a different shape altogether. We’ve seen it happen frankly with the non-profit law—the

new law governing non-governmental organizations. They had lots

of technical assistance, they had lots of opportunities to learn about

relatively good non-profit laws. In the drafts that we’ve seen come

out, it’s not necessarily as we would want to see it. That’s just one

example, but I think this holds true for criminal procedure law, it

holds true for anything dealing with issues that the government

may consider to be sensitive at any particular time.

On the other hand, I think some of these things are also demand

driven. As we look at problems with labor in state-owned factories,

as we look at problems that communities are having with local government officials, the Chinese realize that they need to do something about these problems. They don’t want riots in the streets,

and they don’t want to have opportunities for citizens to gather

where people have a grievance that other people can identify with.

26

So I think that as they go forward, particularly in things like labor

laws, what we’re looking at is enforcement, problems with enforcement. They have laws on the books, they’re just not enforced, or

they don’t have adequate laws. It just depends on the circumstance

and timing, and frankly, who’s in charge of the effort to rewrite the

law. Individuals are important. If you find reform-minded people

they can often make things move in a way that you might not expect in the Chinese system.

Mr. WOLF. Thank you. Next is Matt Tuchow who is with Congressman Sander Levin.

Mr. TUCHOW. Thank you. I wanted to first of all ask a larger

question which relates to the topic today of promoting rule of law

in China. What do you see as the appropriate role of this Commission, Bob, you alluded at the beginning to that topic. I’m interested

in specifically how this Commission can best serve its role to make

specific recommendations to Congress and the executive branch regarding promoting rule of law, your thoughts on that.

Mr. KAPP. Well, let me offer just my personal experience. The

Commission has a legal definition and you all I’m sure have read

it. I would hope that in the area of law, the Commission would effect a sea change in the long inherited approach taken by the Congress in particular—less so by the executive branch—to China, and

that is that the Chinese are so lacking in elemental virtues that

the role of the Congress should be one to crusade against their iniquities.

I would recommend that this Commission help to lead the Congress in the direction of the most positive and active and committed engagement as possible by legislators of all views and parties with their Chinese counterparts on subjects of interest here

and concern, including the iniquities of the justice system and the

iniquities of the labor system and so forth.

The greatest thing this Commission could do, vis-a-vis the Congress, would be to get the Congress back on—back on is hardly the

word—but onto a course of active and committed engagement with

China on the issues that concern members and concern the Chinese. You’ve heard today from all of us that there are tons of

things that the Chinese want to engage with the Americans on that

are of concern to all of us in this room. So, Matt that’s my point.

I would urge you to go back to your members and say, ‘‘Call Congressman Don Manzullo on the phone and tell him you want to get

involved with the Inter-Parliamentary Exchange with the National

People’s Congress on June 5 and 6 and to make a commitment to

doing that on a longer-term basis.’’ The NPC and the U.S. Congress

come from such different starting points and have such different

approaches and yet they both, in fact, are the lawmaking institutions of their respective countries. There’s an enormous amount

that can be done here, so I would hope that this Commission would

play a very positive role, particularly vis-a-vis the Congress, in that

regard.

Mr. TUCHOW. Other panelists?

Mr. SULLIVAN. I think the role we play is just to gather the information. I think there’s an interesting point that Bob made here.

Everyone talks about the rule of law, but what does it really mean?

It’s broken down into a lot of pieces and subpieces that have to be

27

explored and fully understood by Members of Congress so that they

know they have to speak in terms of specific areas of law that are

being addressed through reform in China right now. I think more

and more of this information is gathered and shared in a non-biased way one way or the other, and to be able to have some discussions about this is the most appropriate thing to do. You shouldn’t

be recommending increased amounts of foreign aid either, but you

should be talking about ways you can bring people together as people. That’s not an original thought certainly, but one that’s very essential, particularly when you are dealing with China, because relationships and ties and activities develop from relationships with

people. Practitioners with practitioners, Congressman with representatives of the People’s Congress and on and on.

Mr. TUCHOW. Others?

Mr. REINSTEIN. In a lot of ways the rule of law is an American

invention and it’s one of our most powerful exports. It’s had a tremendous influence all over the world. Since there does seem to be

a mutuality of interest between China and the United States, on

these issues, I don’t really understand the down side of Congress

pursuing a stronger policy of engagement in this area. I’ve had a

lot of discussions with people who wonder whether what we’re

doing in China is good. I can’t quite understand how it could be

bad. I think if there is one area where the United States and China

can work together well, it is on the development of a credible legal

system in China and I think that is a prerequisite to all of the

other goals to which Congress aspires.

Mr. TUCHOW. Nancy, did you have any comments?

Ms. YUAN. No.

Mr. WOLF. We will go through one more round of questions.

Bob Reinstein, corruption is endemic in China. The senior Chinese leadership recognizes it, but clearly doesn’t know what to do

about it. Do you have any insight in terms of your own teaching,

visits, and discussions with your students and lawyers and others

involved with Temple, as to their concerns about the danger and

damage from corruption and what it’s doing to undermine development of rule of law and progress in China?

Mr. REINSTEIN. It is clearly one of the biggest problems. I don’t

know, there have been some suggestions about this before. As Bob

Kapp said, one of the interesting things that is developing in the

Chinese media is this media offensive against corruption, which is

an interesting sign, it’s the Party using the media to try to mobilize

a force against corruption. I really don’t know how this problem is

going to be overcome. It is a very serious problem. The fact that

the Chinese understand it’s a very serious problem is a very good

sign, it’s not something which there’s any kind of State of denial

going on. Maybe that’s a good starting point, but I think probably

the other panelists have better ideas than I do about this.

Mr. WOLF. John Foarde.

Mr. FOARDE. Bill Sullivan, in your presentation you mentioned

that different donors are favoring or pushing different models of

administrative law and procedure. In real short order, because we

don’t have time for the university lecture that we would like to

have or that I would like to have, can you outline what the difVerDate 11-MAY-2000 09:34 Jul 12, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 80531.TXT China1 PsN: China1
28

ferences are in general terms in the types of models that say the

Europeans the Canadians, others maybe would like?

Mr. SULLIVAN. I think either Nancy or Bob could probably speak

better to that than I could. I just want to say that a lot of this activity that different sponsoring nations and Bob would know about

this too I’m sure that is usually directly related to a lot of the commercial interests within the country itself, so they are willing to

promote and support reform of law, rule of law projects that are related not necessarily to trade, but just so that they can maintain

relationship contacts in that country in a wide number of areas

throughout the country.

Mr. FOARDE. The people that are going to be deciding things

about things that are related to commercial interests, policies and

issues?

Mr. SULLIVAN. It’s that, and the Chinese as you know very, very

well, are very adept at borrowing what they can from every Nation

on earth, and still come up with something that has distinctly Chinese characteristics.

Mr. WOLF. Thank you. Susan.

Ms. WELD. I’m wondering if this is something maybe Nancy

could answer. Does the TV programming that has to do with popular legal education have a rural focus, ever, or is it for urban

kinds of questions?

Ms. YUAN. No, it’s for all kinds of questions. In fact, sometimes

the shows are call-in shows. There are radio shows and television

call-in shows where you can ask a question.

Ms. WELD. And you can call back from rural areas where there

is significant population?

Mr. KAPP. Ira was that short enough that I could add one incident on rural matters? The Internet is going to make a difference

in this regard. I heard that from Sichuan local officials on a wide

range of things having to do with rural awareness of what’s going

on outside the village.

Mr. WOLF. Holly.

Ms. VINEYARD. I have a question I would like to pose to whomever feels most comfortable answering it. What are the major constraints that you face in designing and implementing your technical assistance programs—other than funding—and absent these

constraints, what would you really like to be doing?

Mr. SULLIVAN. Well obviously, the primary constraint in all of

these programs is making sure the materials that you are using for

these training programs are relevant and that it’s meeting the

mark, so to speak. We have over time, learned that what we propose in the way of a training program and the content of the material that arrives in Beijing, or wherever that might be in China to

have the training program, very often we have to change everything completely based on discussions with people in the program,

they want to learn something completely different. We have to be

very, very flexible and be able to adapt the material to meet what

the interest might be.

Mr. WOLF. Bob.

Mr. SHEPARD. Professor Sullivan and Mr. Kapp both noted that

programs funded by the U.S. Government often are regarded with

a certain amount of suspicion. We are in a situation that the DeVerDate 11-MAY-2000 09:34 Jul 12, 2002 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 80531.TXT China1 PsN: China1
29

partments of State, Labor, and Commerce are called upon to conduct programs in the rule of law area, and I was wondering if you

have some thoughts about how those programs could be best conducted to be as effective as they possibly could in light of your comments.

Mr. SULLIVAN. Suspicion is probably not the best word. What has

to be ironed out more than anything else is the relationship between the Party, the university, the group, the non-profit that’s

going to be providing the work in China, and what the expectations

are. Usually there is conflict about the agenda and what’s expected

on the other end, and there’s a lot of involvement there and that

at the front of this is really very, very critical to the ultimate success of the program. You are going to run into less suspicion on the

part of the Chinese if you set out a good worthwhile activity that’s

well defined, that’s clear and understood and has simple goals.

Mr. REINSTEIN. Well, we received the first Federal rule of law

grant for China and this has not been a problem I think because

we asked for funding based on what the Chinese were requesting

and that’s the funding we got, so there was a mutuality of interest

and I don’t think that our program is weaker, it’s much stronger

and we’ve actually been able to do what the Chinese wanted us to

do.

Ms. YUAN. I don’t necessarily think that that’s a problem provided that you work through organizations that have the trust of

whomever it is you want to work with. The Asia Foundation has

been a federally-funded organization for a very long time and we

have never had a problem.

Mr. KAPP. And I think there’s a role for Federal programs in

China. The Commerce Department is doing a great job on WTO

training already and intellectual property and so forth.

I’ve been on three party digital video conference where people go

into the Consulate General in Shanghai and the Embassy in Beijing and we work here in Washington and we’ve gotten into very

blunt stuff.

I took a friend from a very, very well informed human rights

community to one of these things down at the State Department

studio and we had a great interesting evening. It’s not that no one

will touch the U.S. Government. It’s the more nuanced thing that

every panelist has spoken to here: What is the government’s relationship to the program and what are the goals of each? And what

is the subject matter? If the subject matter is abuse of power by

Communist Party cadres, then it’s going to be tough under any circumstances, but even tougher if it is funded by the U.S. Government.

Mr. WOLF. Arlan.

Mr. FULLER. During the PNTR debate there was some discussion

over the Laogai prison system and last fall in the House International Relations Committee there was a hearing on the sale of

organs taken from Chinese prisoners. In any of your programs, has

there ever been the issue addressed of prisoner rights?

Mr. KAPP. I can’t remember whether any of the programs that

the Fund has put small amounts of money into has been that specific in its reach. I think probably not.

Mr. WOLF. Interesting question though. Matt.

30

Mr. REINSTEIN. One of our students is actually pretty high up in

the prison system in China.

Mr. TUCHOW. One of the topics that’s been alluded to by the panelists today has been the structural issue of the independence of

the judiciary, and I think Bob, you referred to the point that judges

are underpaid and that could lead to corruption etc., and so I’m

wondering what sort of work either your program has done or other

programs have done that are efforts to deal with bigger structural

issues. You can train judges and they may be very good judges, but

if they are beholden to others in the party or whatever, how effective is that in the long run? The question really is about what sort

of programs exist now to look at this issue of judicial independence

and where have the Chinese expressed an openness to dialog on

these particular issues? I believe maybe even in administrative law

there’s an opportunity.

Mr. REINSTEIN. Well, you know we are teaching in our programs

how an independent judiciary operates so the people taking these

programs will be learning that. How and what they do with that

information and how they solve the structural problems, one of

which is how they pay the judges, another of which is how judges

are viewed in the government hierarchy. Those changes are

changes that the Chinese will have to make if they want to have

an independent judiciary. I think they understand that in order to

have an independent judiciary those changes are necessary.

Mr. TUCHOW. Isn’t there something in the Administrative Code

Article XX that requires an independent judiciary as part of the accession to WTO?

Mr. REINSTEIN. Yes.

Mr. TUCHOW. And is that being addressed?

Mr. REINSTEIN. Well I have a teenage son who would say: And

your point is? [Laughter.]

Mr. TUCHOW. Is this being addressed in your training programs

regarding WTO?

Mr. REINSTEIN. Yes it is. I think a large impetus we talk perhaps

too much about WTO. The genesis of all this really started with the

development of the market economy itself. Even without WTO,

there are enormous forces operating on the Chinese to develop a

credible legal system because they understand that you can’t have

a market economy without a credible legal system. WTO in a sense

may be a symbol or a culmination or a codification of all of this but

even without WTO, there are these forces and not just from foreign

investors, but from the portion of the Chinese economy which is

growing, which is what we would call the market sector. The State

owned enterprises, as you know are a tremendous drag on the

economy. The economic growth that is taking place is in the private

sector or the market sector and a lot of Chinese who are operating

their own companies are becoming the leading advocates for the development of a legal system, including having an independent judiciary.

Mr. WOLF. Given that the next Commission event is a full Commission hearing on WTO issues, Chinese Government compliance,

and their capabilities to implement commitments this is a perfect

point on which to end today’s session. I want to thank all four of

you for coming here, on the morn of a holiday weekend. This has

31

been very useful to us, and it has provided significant input into

the report that the Commission will make to the President and to

the Congress in October.

On behalf of Senator Baucus and Congressman Bereuter, and I

assume, all of our respective bosses, I thank you very much for a

very useful session. We could have gone on much longer but you

have to stop sometime. Thanks.

[Whereupon at 12 p.m. the hearing was concluded.]

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A P P E N D I X

34

PREPARED STATEMENTS

PREPARED STATEMENT OF NANCY YUAN

MAY 24, 2002

Thank you for inviting me to represent The Asia Foundation at this Congressional-Executive Commission Roundtable on Rule of Law Programs in China. I have

been intimately involved with the Foundation’s China law programs, and have

worked with and had exposure to China programs operated by other organizations

for many years. In this regard, I am pleased to offer my perspective on the Foundation’s legal reform programs in China, the expectations for and impact of such programs, and, most importantly, how these programs are making a difference in the

development of a legal culture and legal practice in China.

The Asia Foundation has supported programs in China since 1979. The Foundation’s efforts over the years have focused on governance, legal and economic reform,

U.S. China relations, the development of the non-profit sector and the role of women

in society. Programs have included U.S. study programs and exchanges in the Asia

region, cooperative efforts to develop cross-straits relations, technical assistance,

and support for public education on local governance reform and legal rights.

The area of legal development is not a new one for The Asia Foundation. Law

reform and legal development have been a centerpiece of the Foundation’s programming throughout the Asia region for nearly 50 years, and has been a major area

of focus in our China program since 1979. Our approaches and grant-making techniques in China are consistent with those applied in other countries in Asia. We

identify constituent interests, evaluate needs, and provide sequential grants, all of

which are intended to strengthen legal reform and, in various ways, promote citizens’ rights. We work with government institutions at the national and sub-national

levels, and with citizens’ groups and the nascent NGO sector. As a result of a longterm, consistent commitment to programs in China, the Foundation is able to work

effectively with both Chinese government and nongovernmental entities to develop

and implement programs throughout the country.

While support for rule of law programs in China is a relatively new field, it has

become a crowded one. Even before the 1997 Presidential Summit, where former

President Clinton and President Jiang Zemin agreed on an agenda for rule of law

development in China, many bilateral and multilateral donors were supporting a

wide range of legal reform initiatives. Ongoing, comprehensive legal assistance and

cooperation programs are supported by Germany, Canadian CIDA, British DFID,

the European Union, Asian Development Bank, World Bank totaling millions of dollars. These programs have included legal education, exchanges, judicial training and

administration, technical assistance in specialized areas of the law, and technology

and data base management of legal information. This flood of assistance to China

is a clear acknowledgement of China’s position in the world economy and the desire

of donors to encourage China toward predictability and transparency, and, at the

same time, address human rights concerns. To the extent that the U.S. has been

consistently involved in supporting on-the- ground programs, these efforts have been

largely conducted by the nongovernmental sector, primarily by The Asia Foundation, the Ford Foundation and a number of American universities which have provided opportunities for Chinese legal professionals to study in degree and non-degree programs in the United States. They are no where on the scale of assistance

provided by European and other donors.

The Asia Foundation’s law program focuses on three major areas. The first is the

area of administrative law, where our programs are aimed at developing the mechanisms to restrain the arbitrary exercise of State power by regularizing the functions

of government agencies at different levels, defining citizens’ rights, providing redress for citizens who have been wronged by the actions of government, and punishing offending officials. These programs are designed and implemented in cooperation with the National Institute of Administration, which is China’s only civil service training institution, Peking University Law School, and the China Administrative Legislation Research Group, a national network of legal scholars, jurists, and

officials that support legal drafting and interpretation of law by the National People’s Congress. This ongoing effort provides technical assistance to those drafting

specific administrative rules and regulations to limit the discretion of the state, by

clearly defining the boundaries of government authority. To the extent that we hear

about cases in the press involving citizens suing government for vindication of their

rights and compensation for loss (and many more cases we do not hear about), these

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lawsuits are based precisely on these new rules and regulations. The Administrative

Litigation Law and State Compensation Law, in particular, allow citizens to sue the

state, albeit only for concrete acts of commission or omission by specific agencies or

individuals.

Under this program of administrative law reform, the Foundation currently supports a program to help in the development of a draft Administrative Procedure Act,

with planned submission to the National People’s Congress by the end of 2003. This

Act will mandate transparency, including prior notice, public hearings, consultations

and require consistency in rulemaking across bodies of law and at different levels

in China.

In cooperation with the Office of Legal Affairs of the State Council, we are providing training for national, provincial and municipal level officials in WTO compliance as it relates to administrative law. Specifically, this training covers the provisions related to uniformity in applying WTO rules and norms consistently across all

of China; transparency in providing prior notification of new rules and changes in

decisions, and points of contact for complaints; and independent impartial review of

trade-related decisions at the national and sub-national level. This training targets

the key Legal Affairs personnel in every province in China, including the autonomous region of Tibet, municipal personnel in the largest cities (Beijing, Shanghai,

Tianjin, Chongqing), as well as national Legal Affairs staff.

A second area of emphasis for the Foundation is on legal aid, to provide legal protection of the rights and interests of citizens under civil law. This program focuses

on China’s national legal aid system, under which assistance is provided to legal aid

centers in some of China’s poorest areas, to ensure adequate legal representation

for the indigent and disadvantaged. There are now government sponsored legal aid

centers in every province in China, a wide range of legal services operations run

by nongovernmental organizations, women’s groups and universities, among others.

These groups litigate, they counsel, mediate and educate. The Foundation provides

support for the case handling of civil cases in five centers, under what the National

Legal Aid Center refers to as ‘‘The Asia Foundation Model’’, where funding for case

handling provided by the Foundation is matched by operational funding from the

local government.

The Foundation also works in partnership with the private sector, for instance,

in support of a program for migrant women workers in the Pearl River Delta region

in southern Guangdong province. With funding from the Levi Strauss Foundation,

this program provides services and training for migrant women workers, who make

up 60 percent of the migrant worker population. The Foundation has been active

in Guangdong over the past 3 years, working with the local labor union, the Women’s Federation and university based research centers to provide counseling and

legal services to migrant women workers.

The Foundation also supports public legal education. In the program for migrant

women workers, the Guangdong Women’s Federation developed and last year, distributed 20,000 copies of Learn to Protect Yourself, a handbook covering women’s

basic legal rights. This handbook will be reprinted, in preparation for a distribution

of 30,000 copies this year. The Federation also operates ‘‘street legal education

fairs,’’ provides consultation services, and supports a legal aid group serving the migrant women population.

Another example is a television program the Foundation helped fund, ‘‘Let’s Talk

About Law Today,’’ which has become one of the most popular television shows in

China. This program, which appears on CCTV, China’s national television network,

introduces the stories of ordinary people whose legal problems are explained, addressed, or resolved according to the law. In addition, analysis is provided by Chinese law experts to introduce the concepts of law and its application to the broader

audience, and the program even offers legal advice. While ‘‘Law Today’’ is not the

first television law show dealing with legal issues, its success has encouraged similar law programs and, at present, approximately 2,000 provincial and city level stations now feature law related programs.

New, large scale efforts are underway by the government to educate Chinese citizens about their legal rights, using school textbooks, media campaigns, and through

the efforts of legal aid centers and nongovernmental organizations. One can argue

that the Chinese government is merely protecting its own interests and stability in

the country, by ensuring that citizens feel that their rights are being protected

under the law. This works to stem a rising public anger against arbitrary behavior

by local government officials, state-owned enterprises where safety precautions are

not enforced, and even where public services are not responsibly delivered, such as

in health or education. At the same time, increased awareness among Chinese citizens of their rights under the law is slowly building a sense of legal culture that

had not existed previously in the society.

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This is all in the context of a rapidly changing environment. As you have heard

in past testimony before this Commission, at the end of the Cultural Revolution,

there were fewer than 3,000 lawyers and a handful of law school programs. Today

China has hundreds of law schools and over 125,000 lawyers. In addition, hundreds

of laws and regulations have been promulgated, including the 1998 Law on Lawyers, which basically creates a legal profession in which lawyers are no longer considered civil servants, but professionals responsible to their clients, and in 2000, a

law on legislation, which is the first law of its kind to define a legislative process.

We all recognize there is a long way to go and there are significant limitations

for donors and others supporting legal reform efforts. Even with laws in place and

even if plaintiffs are able to win judgments, these are ineffectively enforced. Lack

of judicial enforcement is one of the most serious problems in commercial and other

disputes as well. In addition, we are well aware of the limits to public legal education. Just informing the public about existing law is a start, but it is not enough

to ensure enforcement. Finally, public finance is a serious problem for legal and judicial reform. Without a public revenue stream adequate to pay for the services to

be provided, it is difficult to recommend reforms because it is difficult to guarantee

that they will be sustained.

On the other hand, there is currently a momentum that is driven by a domestic

demand, and there are opportunities to work with the Chinese government and with

the nongovernmental sector to expand and strengthen that momentum by delivering

programs that address real problems at both the grass roots and policy levels. The

Asia Foundation believes that these programs will make a positive difference over

time. In the case of legal aid, they already have.

As China proceeds further into the reform process, there is now the prospect for

genuine progress and real cooperation, but only through consistent effort and realistic expectations. We believe that these programs will contribute over time to the

protection of the rights of the individual Chinese citizen and, overall, to American

interests in China.

TESTIMONY OF ROBERT J. REINSTEIN, DEAN, TEMPLE UNIVERSITY BEASLEY SCHOOL

OF LAW BEFORE THE SENATE APPROPRIATIONS COMMITTEE, SUBCOMMITTEE ON

FOREIGN OPERATIONS

MARCH 7, 2002

It is a great pleasure to have an opportunity to convey our sincere gratitude to

you and the members of this Committee for your support for Temple Law School’s

rule of law programs in China. We are proud that our projects are contributing to

the establishment of the rule of law in China, and we welcome this chance to brief

you on what we have accomplished so far and what, with your continued help, we

intend to do.

As you know, President Bush recently returned from a visit to China, where he

spoke on the campus of our Chinese partner institution, Tsinghua University.

Tsinghua University is the ideal partner as it is a forward looking university with

a tradition of educating many of China’s leaders, including Zhu Rongji, the current

premier, and Hu Jiangto, the expected next President of China. Our other partners

in this project are New York University, Brigham Young University, the State Agency for Foreign Experts Administration (SAFEA) of the PRC, and the Supreme Peoples Court and its National Judicial College. We were invited into China by the government because of Temple’s history of educational involvement in China (Temple

was the only American university to award an honorary degree to Deng Xiaoping

during his 1979 state visit to the U.S.) and because the Chinese government was

aware of and impressed by a similar innovative program that Temple has conducted

in Japan since 1994. We know that a major factor in our success is the trusting

working relationship we have developed with our Chinese partners.

The rule of law is necessary condition for a functioning democracy. Democracy and

the protection of individual rights cannot be realized without a transparent, rulesbased system that applies to all, including the government. The rule of law itself

cannot operate without a judiciary that is well-educated in the law, honest and independent. Another prerequisite is legislators and regulators who are knowledgeable

about how law operates in a democratic society with a market economy. All of these

elements are essential to the protection of individual rights. When fulfilled in China,

these requirements will hopefully result in a legal system suitable to the needs of

the Chinese people and compatible with international legal norms and standards.

The extent to which this occurs will be decided by the Chinese nation. We are proud

to provide educational programs, advice and assistance toward these ends.

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Temple’s rule of law program in China started with a Masters of Law (LL.M.) program. This is the first foreign law degree-granting program in the history of China.

Our students have included national and provincial level judges, ministry officials,

legislative branch officials, law professors and minority students from Western

China. The original curriculum focused primarily upon business subjects but also included courses in American constitutional law and professional responsibility. As

importantly, by using the American case study method, the students, including of

course the Chinese judges and ministry officials, were immersed in appellate decisions that inherently exposed them to fundamental concepts of due process and

equal protection, including the resolution of disputes through an independent judiciary, the supremacy of law and the submission of contested governmental actions to

enforceable judicial review. Today, the Masters of Law program also offers courses

in labor and employment law, environmental law, trial advocacy and criminal procedure. As noted below, with the support of this Committee, we have expanded the

LL.M. program and instituted additional short-term non-degree judicial training

programs. We have also undertaken a host of supporting activities as requested by

China’s Supreme Judicial Court and the National Peoples Congress. All of these activities now accrue as integrated parts of Temple’s Business and Comparative Law

Center (BCLC) which are more fully described below.

With the development of a market economy and entry into the World Trade Organization, our Chinese partners fully understand the necessity of developing a credible legal system. Many new laws have been passed that could not have been imagined before, including, for example, a new contracts law. Our Chinese partners also

appear committed to making major necessary reforms in the country’s judicial system. Last year, the National Peoples Congress passed a law requiring all new

judges to be legally-educated and members of the bar. The Supreme Peoples Court

has issued new directives on the enforceability of arbitration awards and is creating

a new economics court division. Currently, the Supreme Court is drafting a code of

judicial ethics; and the National Peoples Congress is considering the enactment of

a law governing real and personal property rights. At the request of our Chinese

partners, we are honored to provide assistance on both of these projects.

THE BUSINESS AND COMPARATIVE LAW CENTER

The BCLC consists of several concurrent projects that share the goal of working

cooperatively with key Chinese legal institutions to strengthen the rule of law in

China. This includes degree and non-degree educational programs for Chinese

judges and legal officials; collaborative consultation on specific law reform projects;

and providing assistance to the Chinese government in meeting its membership obligations for membership in the World Trade Organization.

The BCLC also assists the Chinese government in developing transparent and

well-considered laws. China is undergoing a major law reform effort as it becomes

a member of the WTO, and we know that China is receptive to receiving input from

experts from the U.S. and other nations in this process. Our work in China has provided us with crucial contacts in the Chinese legal agencies and a high degree of

credibility .

I am pleased to report that all of these projects are proceeding on schedule and

as we had hoped.

A. EDUCATION OF CHINESE JUDGES AND OTHER CHINESE OFFICIALS

Judicial Training Program

Our faculty and administration has developed a close working relationship with

the Supreme Peoples Court and the National Judicial College.

Our judicial training programs take several forms:

Short Term Seminars

An intensive Legal English Training program in Spring, 2002

A month-long intensive judicial training program in the U.S. in July, 2002

LL.M degree programs at the Temple/Tsinghua Program and U.S. Law Schools

Brigham Young University is designing an intensive legal English program to

train a pool of approximately 60 members of the Supreme Peoples Court selected

by Temple from applicants proposed by the court. The goal is to bring the judges

to a level of English language proficiency, which will allow them to use English language legal resources for study and to access these resources after they complete

their training. From this pool of judges, Temple will select candidates to attend the

summer judicial training program in New York as well as LL.M. degree candidates

for Temple’s Beijing and Philadelphia-based LL.M. programs. This course is on

schedule to begin in late spring, 2002 and is projected to run until July 15, 2002.

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N.Y.U.’s Institute of Judicial Training has been actively involved in setting up a

four-week training program that is on schedule to begin on July 22, 2002.

Temple’s LL.M. degree program in Beijing is currently training eight members of

the Chinese judiciary and, as mentioned above, we are already involved in the planning for a legal English program which will provide us with a pool of qualified candidates for the Temple/Tsinghua LL.M. program in Beijing as well as Temple’s

LL.M. program in Philadelphia.

The Temple Masters of Law Program

Temple’s 2-year LL.M. program in Beijing, which teaches U.S. and international

law, began in 1999. The program currently has a class of 32 students, including

eight judges, three Tibetan lawyers, four law professors and nine Chinese government officials, including the Division Chief of the NPC Legislative Affairs Commission, and staff attorneys from the China Regulatory Securities Commission, NPC

Committee on Internal and Judicial Affairs and the Ministry of Foreign Trade and

Economics.

Our curriculum includes courses on Constitutional law , Labor and Employment

law, Criminal Procedure and Trial Advocacy, International Environmental law and

Business and Commercial law.

Our Criminal Procedure and Trial Advocacy course was specially designed by

Temple Professors Edward Ohlbaum, one of the leading experts in advocacy law in

the U.S., and Associate Dean and Professor of Law JoAnne Epps, an expert in criminal law and procedure. Professors Epps and Ohlbaum, are in Beijing at this moment

teaching this course to our Chinese students.

Professor Michael Wishnie of New York University Law School is teaching U.S.

Labor and Employment law. This course is of great importance for a country such

as China with a developing market economy.

All of our programs are taught in English because English is the international

language of law, business and the Internet. We select students with sufficient

English language ability and invest significant resources to bring their language

ability to the level at which they can study directly from primary U.S. and international source materials. We believe that an important aspect of the program is

not only to impart information about the current state of legal thinking on the international level, but also to provide as many influential legal professionals as possible

with the capacity to continue to interact with the international legal community

long after they have completed their formal training.

Our LL.M. students study in English and have access to a computer lab. They

are required to do assignments using computers and legal research. We believe this

is a crucial element of the program as it gives our graduates long-term access to

international legal materials as they develop long after they graduate.

B. BUSINESS AND COMPARATIVE LAW FORUMS AND WORKING GROUPS

One of the major goals of the Business and Comparative Law Center is to create

working groups consisting of American scholars, attorneys,judges and business people who will provide technical assistance on a mid-to-long term basis to Chinese legislators, regulators, scholars and judges as they develop China’s legal infrastructure

to accommodate China’s emerging market economy. The working groups will concentrate on selected developing legal issues of particular importance to the reform

of the Chinese legal system.

Temple has been meeting with Chinese academics, government officials and business people to ascertain the areas in which such working groups might be well received and fruitful and are quite pleased with our efforts and the results to date.

• Temple, Tsinghua and FADA Universities and the China Society of Comparative Law (CSCL) are jointly forming a Working/Study Group under the leadership

of Professor Jiang Ping, FADA professor and Chair of CSCL, and the leading scholar

of civil and commercial law in China. Professor Jiang has been designated the key

drafter of the new Chinese property law by the National Peoples Congress. The

most important goal of the group is to provide support through research, exchange

of academic visits, seminars and counseling in the various areas of property law.

We will also create a listserve so that the discussions can continue uninterrupted.

The first session of the working group will take place June 17–18, 2002, in Beijing.

• From July 8 to August 9, 2002, eight prominent Chinese WTO scholars will

be in residence at Temple Law School where they will pursue research on WTO

issues facing China. This working group, chaired by Temple Professor Jeffrey

Dunoff, will include meetings with key American WTO scholars for discussion and

professional exchanges that we expect to continue beyond these meetings.

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• Professor Amelia Boss was invited to lecture at Tsinghua University on electronic commerce in November 2001, by Vice Dean Wang Zhemin. While in China,

Professor Boss discussed the possible formation of a working group on the subject

of electronic commerce.

• Professor Scott Burris visited Beijing in December 2001, with the purpose of

discussing the creation of a working group on health law and policy. At present,

Chinese legal scholarship has not progressed to the point where they have even

begun to consider this topic despite its importance to an emerging market economy.

Regulatory and legal structures in this area are absent or deficient. Professor

Burris’ visit resulted in two promising initiatives—a Health Law Working Group incorporating faculty at Tsinghua, Temple, the Union School of Public Health/Chinese

Academy of Preventive Medicine and other institutions; and a plan to assist the Chinese Academy of Preventive Medicine in the development of a new institute on

Health Law and Policy to be housed in the Chinese Centers for Disease Control and

Prevention, a new governmental agency now being organized.

C. ASSISTING CHINESE GOVERNMENT AND LEGAL OFFICIALS WITH WTO COMPLIANCE

In addition to our overarching goal of fostering the rule of law in the PRC, an

important goal of the BCLC is to assist the Chinese government with WTO compliance issues. We are pleased to report that we have already made a great deal of

progress with respect to this goal. The projects listed below are in addition to the

WTO working group described in the preceding section.

• On December 9–10, 2001, Professor Jeffrey Dunoff, an expert in WTO matters,

presented a 2-day seminar on WTO compliance issues to 91 Chinese judges at the

invitation of the National Judicial College of the Supreme People’s Court in Beijing,

China. The lectures were very well received, with the vast majority of the judges

giving the presentation a grade of 90 percent or better.

• On December 1, 2001, Professor Dunoff gave a 2-hour lecture on WTO law to

students and faculty at FADA.

• On December 12, 2001, Professor Dunoff gave a lecture to approximately 25

students and faculty at Tsinghua University School of Law on WTO entitled ‘‘Beyond Doha: The Future of the Trade Regime.’’ He provided all attendees with copies

of three law review articles he had written in the area.

• Professor Dunoff has been invited by Yuan Jie, the Division Chief of the National Peoples Congress Legislative Division to address the members of her department on WTO issues. Yuan Jie is currently a student in the Temple-FADA LL.M.

degree program. Professor Dunoff has also been invited to return to the National

Judicial College for additional lectures on WTO topics.

• Professor Zhang Mo, the director of the BCLC, has spearheaded the discussions with the Supreme Peoples’ Court. In these discussions the Court has asked

that Temple emphasize WTO issues in the judicial training programs it provides for

the next 5 years.

The above described activities of Temple’s BCLC are a modest but encouraging

beginning. Much remains to be done. Programs like Temple’s BCLC should be replicated throughout China. Additional programs aimed specifically at provincial level

judges and regulators should be undertaken. Hopefully, a program to allow American JD students to study in China for a semester will also emerge. With the support of this Committee, these and other innovative rule of law programs can and

will flourish in China.

Again, my profound thanks to the Committee for its support of what Temple is

doing in China and for your understanding of its importance.

Respectfully submitted,

Robert J. Reinstein, Vice President and Dean, Temple University Beasley School

of Law.

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SUBMISSION FOR THE RECORD

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