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By Elizabeth M. Lynch, October 30, 2009

The third and final in a series of articles regarding China, On the Road to 2025.  Click here for Part 1; Here for Part 2.

On October 19, the Council on Foreign Relations and Project 2049 Institute cosponsored “China 2025,” a conference exploring where China may be in the next 15 to 20 years. Guest blogger Marcy Nicks Moody seeks to illuminate several of the arguments made and issues discussed, namely, domestic trends, foreign policy, and the economic outlook.

Rebalancing the Chinese Economy

By Marcy Nicks Moody

Stephen Roach of Morgan Stanley Asia

One of the keynote speakers of “China 2025” was Stephen Roach, Chairman of Morgan Stanley Asia, who discussed China’s economic outlook. Roach opened his speech with two observations which formed the basis for his comments on the Chinese economy. First, he said, we should not forget that China’s growth benefits not just itself, but also the economies of Asia and the global economy more broadly. The second observation was not his originally, but Premier Wen Jiabao’s (pronounced When Gee-a Bao), who in March 2007 apparently described his country’s economy as being “unstable, unbalanced, uncoordinated, and unsustainable.”

Roach agreed with the Premier’s characterization. China has a supply-focused economy, with production of goods focused on external markets. Indeed, 80 percent of Chinese GDP goes to exports and export sector-led fixed investment, Roach said. Chinese economic growth has also been commodity intensive, requiring vast amounts of outbound investment to access resources and fuel further growth. The fragmentation of governance, corporate control, and the financial system makes the Chinese economy uncoordinated, and with increasing levels of pollution, the unsustainability of China’s growth model is further exacerbated.

After painting a broad picture of the Chinese economy, Roach went on to argue that China’s stimulus package, announced in November 2008, will only compound current imbalances. Seventy-two percent of the package, which had a headline figure of 4 trillion RMB ($586 billion), has gone to infrastructure, and fully 1 trillion RMB ($147 billion) have been allocated for post-earthquake reconstruction in Sichuan province. Not entirely surprising88 percent of growth was driven by fixed investment in the first half of 2009.

The approach is not novel for the Chinese. Similar packages were dispatched in response to the Asian financial crisis in 1997-98 and the slowdown of 2000-01. The general strategy, Roach said, is for growth to be “jump started” by fixed investment, after which the export machine takes over as external demand recovers. But this strategy will not work this time, Roach argued, since external demand—namely the demand of U.S. consumers—is not going to return to previous levels. For these reasons, Roach is predicting a slowdown in the Chinese economy around mid-2010.

Though the argument has some strength, there are also shadows. First,  the stimulus package did include some measures to stimulate household consumption and improve the social safety net which Roach did not mention. Roach should not have so lightly brushed off these measures, as it indicates China’s recognition of current imbalances and the political will to begin remedying them. Second, and related, is Roach’s implication that China either expects external demand to recover to its previous rate of growth or is too naïve to realize this is not going to happen. Arguing that China is either ignorant or in denial seems, to this author, at best unhelpful and more likely a mistake. U.S.-China cooperation over the course of the financial and economic crisis has been close, and China is well aware that the United States will likely not return to the spending patterns that directly preceded the financial crisis. The third issue that was ignored is that of exigency. Might some of the infrastructure spending prove to be inessential, or even superfluous? Will the spate in bank lending lead to a deterioration of credit? Might Beijing deem the stimulus to be ‘worth it’ anyway? Might we? It’s an open question without a clear answer, but was not addressed.

But beyond the stimulus, how will China escape from this unstable, unbalanced, uncoordinated, and unsustainable pattern of growth? One common argument is that the Chinese economy needs to shift away from its current focus on investment and exports, and towards a model based more on private consumption. But as Roach noted, households’ saving in China remains high, because families need to hedge against uncertainties over the provision of healthcare, education, and pensions. To increase consumption and therefore rebalance the Chinese economy, then, one of the key structural changes required is the strengthening of the social safety net, Roach argued.

Also of note is the fact that household incomes in China have not been rising as quickly as national income. That the Chinese government needs to strengthen the social safety net is irrefutable, but measures to increase household incomes, which are not limited to policies that would increase government transfers to households—such as addressing weaknesses in the financial sector, for example—will also play an important role as China seeks to rebalance its economy.

Happy Wen Jiabao

In closing, Roach outlined five of the benefits that would accompany a rebalanced Chinese economy. First, shifting the pattern of growth from a supply to a domestic demand-oriented model would create more stable growth. It would also broaden support for consumer demand, reduce external imbalances, lower the resource intensity of Chinese GDP, and encourage the growth of China’s services sector. In brief, it could help create a Chinese economy that is more stable, balanced, coordinated, and sustainable. Wen would be happy.

Marcy writes about China. In 2007-08, she was a Fulbright Scholar in China, where she was also a Research Fellow with the U.S.-Asia Law Institute. She received an M.A. in East Asian Studies from Columbia University and graduated from Brown University.

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By Elizabeth M. Lynch, October 29, 2009

The second in a series of three articles regarding China, On the Road to 2025.  Click here for Part 1.

On October 19, the Council on Foreign Relations and Project 2049 Institute cosponsored “China 2025,” a conference exploring where China may be in the next 15 to 20 years. Guest blogger Marcy Nicks Moody seeks to illuminate several of the arguments made and issues discussed, namely, domestic trends, foreign policy, and the economic outlook.

China set to rule the world?

China Goes Global or Thinks Local?

by Marcy Nicks Moody

The second panel in last week’s “China 2025” conference covered a range of topics related to China’s foreign policy, falling under the loose rubric of “China Goes Global.” Michael A. Levi and Adam Segal, both of the Council on Foreign Relations, discussed two functional areas of Chinese foreign policy, namely climate and technology policy, while Ambassador David H. Shinn of George Washington University and Evan A. Feigenbaum of the Council on Foreign Relations addressed regional issues.

Though he was not the first to speak, Ambassador Shinn provided a useful framework for understanding not just China-Africa relations, but Chinese foreign policy-making more broadly. Three of China’s core interests in Africa, he argued, are its needs for (1) resources, (2) political support, and (3) productive commercial ties. With regard to the first of these, China has of course sought access to a range of Africa’s natural resources such as petroleum, timber, and minerals. In terms of China’s second need, though political support from African nations may not seem, on its face, as though it would be of extraordinary importance to China, Ambassador Shinn noted that four of the 53 African countries have diplomatic relations with Taiwan. For China, eliminating support of policies at odds with the “one China” policy is imperative, and Beijing spends a relatively large amount of time and effort in attempt to woo these four countries away from their current policies. Third, though Africa is not among China’s largest trading partners, China is Africa’s second largest trading partner, after the United States. And, China will likely become Africa’s largest trading partner next year, said Shinn.

Locating these three drivers of Chinese foreign policy – access to resources, political support, and an international environment conducive to economic growth – provides a useful understanding of what motivates China in its approach to the rest of the world.  Indeed, as an authoritarian government with sometimes questionable legitimacy, much of the Party-state’s justification for a continuation of its rule is now located in its abilities to increase the economic wealth of its citizens and to gain respect and exert influence internationally. Accessing the tools and conditions for economic growth as well as gaining outside political support therefore become crucial to the life of the Party-state. Though perhaps easy to ignore, the role of China’s domestic needs in its foreign policy decisions should not be underestimated.

As we seek to better understand Chinese foreign policy, its ‘go global’ policies, and their possible effects on U.S. interests, there are other myths which need to be dispelled. In their presentations on climate and technology policy, both Levi and Segal made particular note one of the idiosyncrasies of U.S. discussions and media presentations of China—that is, of the propensity for focusing on gross numbers and their Brobdingnagian dimensions. All numbers in China, both noted, are huge. But that does not necessarily make them meaningful. Segal noted, for example, that there has been an enormous increase in spending on research and development in China, but that innovation is more than simply spending. And expectations that China will become a technological superpower by 2025 are likely overblown. Similarly, China should not be viewed as eating U.S. lunch on clean-tech just because it is producing enormous quantities of solar panels, or has calls in its 11^th Five Year Plan for reductions of 20 percent in energy intensity. With regard to the latter, China has created targets, not outcomes, and few, if any of these are on track to be achieved.

In sum, Adam Segal’s argument that China has embraced but will not profoundly change the global science and technology system is perhaps the most balanced view of Chinese ‘go global’ policies more generally. Many such policies and pronunciations are aspirational, but not, by 2025, achievable.

Marcy writes about China. In 2007-08, she was a Fulbright Scholar in China, where she was also a Research Fellow with the U.S.-Asia Law Institute. She received an M.A. in East Asian Studies from Columbia University and graduated from Brown University.

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By Elizabeth M. Lynch, October 28, 2009

The Wall Street Journal’s China blog, China Real Time, recently reported on two new cases filed under China’s new anti-monopoly law (AML). 

Since going into effect in August 2008, the Chinese government has used the AML mostly to prevent mergers by international companies (in March 2009, the merger of Coca-Cola with Chinese juice maker Huiyan was prohibited under the AML).  The two cases discussed in the WSJ’s article involves completely domestic entities and were brought privately (instead of being prosecuted by the government).  One took issue with the pricing strutre of the defendant and was eventually settled and the other alleged abuse of dominant market power.  This suit was dismissed on other grounds. 

While it is still too early to tell, it appears that the Chinese legal system is moving forward in using the AML as more than just a tool to prevent mergers. 

See Wall Street Journal article here.

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By Elizabeth M. Lynch, October 26, 2009

British citizen and Chinese death row inmate, Akmal Shaik

Akmal Shaikh’s story is not unique.  Everyday criminal justice systems across the world deal with the mentally ill, often in disastrous ways and with dire consequences; the United States alone has executed over 100 mentally ill people since it reinstated the death penalty in 1977.  But what makes Mr. Shaikh’s story unusual is that this mentally ill British citizen is now sitting on death row in China, with a potential execution only days away. 

For the vast majority of his fifty-three years, Mr. Shaikh led a rather ordinary life, the kind of life that happily goes unnoticed by the world-at-large.  Running a thriving mini-cab business, Mr. Shaikh was the modicum of middle-class London success, living with his wife and five kids in Kentish Town.  But by the end of 2003, things began to rapidly change and Mr. Shaikh’s peaceful existence would be no more. 

In 2004, Mr. Shaikh left his family and moved to Poland with the goal of starting his own airline business although he lacked both financial capital and any knowledge of the business.  Not surprisingly, left untreated, his mental state continued to deteriorate.  Mr. Shaikh sent over 100 bizarre emails to the British Embassy in Warsaw, Scotland Yard, and even Paul McCartney, often making little to no sense.  However it was in Poland, away from his family, that Mr. Shaikh’s mental illness was preyed upon by a group of international drug dealers that would ultimately trick him into carrying drugs into China, a country that makes the United States’ zero tolerance to drugs look like a joke. 

Promising him a successful music career in China, Mr. Shaikh, who now wanted to become a Chinese pop star although unable to speak any Chinese, was told to fly to the Chinese northwest city of Urumqi with one of the drug dealer’s suitcases.  On September 12, 2007, at the Urumqi airport, Mr. Shaikh was arrested by the police for transporting four kilograms of heroin into China, a charge that is death penalty eligible in China and usually gets it. 

On October 29, 2008, Mr. Shaikh was found guilty and sentenced to death by the Urumqi Intermediate People’s Court.  On October 13, 2009, his first appeal, or what is known in China as a “trial in the second instance,” was rejected and his death sentence affirmed.  Mr. Shaikh’s case is now in the hands of the highest court in China, the Supreme People’s Court (SPC).  If they too affirm his death sentence, he will be executed in a matter of days.  But will the SPC take into account, as required under Chinese law, Mr. Shaikh’s mental illness?  Will the SPC see this case as an opportunity to finally establish procedures to determine a defendant’s mental illness, something the Chinese people have desperately been calling for?

Mental Illness and the Chinese Criminal Justice System: A System Not Unlike Ours

There is no doubt that Mr. Shaikh trafficked drugs into China.  Under Article 347 of the Chinese Criminal Law, trafficking more than 50 grams of heroin into China is subject to a prison term of 15 years, a life sentence, or the death penalty; here Mr. Shaikh brought in over 80 times that minimum amount – four kilograms of heroin.  China, like the United States, takes a harsh stance against drugs and often gives the maximum sentence of death for drug trafficking, and here, given the amount trafficked, Mr. Shaikh’s death sentence is far from surprising.  And even though Mr. Shaikh’s crime would not be death eligible in his home country of the United Kingdom, by committing the crime in China, he is subject to Chinese law and his foreign citizenship in no way excuses him from punishment. 

But Chinese law takes into account mental illness when determining a defendant’s culpability.  Article 18 of the Criminal Law eliminates all criminal culpability for those defendants who suffer from severe mental illness. For defendants whose mental illness is intermittent or less than severe, Article 18 allows the court to consider such factors in sentencing, permitting the court to give a lighter punishment than ordinarily required. 

Normatively, the Chinese criminal law, at least in terms of the mentally ill, is not too different from the criminal laws of the United States or the United Kingdom – all of these countries seek to protect the vulnerable class of the mentally ill from the harshness of the criminal law.  But where China differs is in its ability to implement these normative values, and Mr. Shaikh’s case is a prime example of this disconnect between the goals of the Chinese Criminal Law and its actual practice, an example that is becoming all too common in today’s China. 

Lack of Procedures to Determine Mental Illness in China’s Criminal Law

It was not until Mr. Shaikh’s appeal, the trial in the second instance, that the issue of his mental illness was raised by his attorneys.  And although the appellate judges laughed openly in court at Mr. Shaikh’s bizarre behavior in the courtroom, they found that Mr. Shaikh was not mentally ill.  The court based its judgment solely on Mr. Shaikh’s personal testimony that he does not suffer from mental illness and the fact that his family lacked a history of any mental disease.  There was no psychiatric examination of Mr. Shaikh or testimony from mental health experts regarding his mental state.  Instead, the judges merely relied upon their own observation and the testimony from an apparently mentally ill individual that he is completely sane. 

Mr. Shaikh’s case is not an example of the Chinese court subverting proper procedure.  Instead, Mr. Shaikh’s case is reflective of the fact that there is little to no procedures in place to actually determine the mental health of a defendant.  And this is not the first time that the issue of mental health, and the inability of the justice system to implement procedures to protect the mentally ill, has come up.  In fact, in the past three years, two Chinese citizens, Yang Jia (pronounced Yang Gee-ah) and Qiu Xinghua (pronounced Chiu Sing-hua), have both been executed even though questions of their mental health was openly debated by the Chinese legal community as well as by the Chinese public.  Calls from the Chinese people to protect these apparently mentally ill individuals went unheeded by the justice system. 

Instead, the courts have maintained a system that offers little opportunity to question the mental health of the defendant.  Neither the Criminal Law nor the Criminal Procedure Law offer any instruction on how mental health determinations should be made.  And other guidelines, namely the “Provisional Regulations on Psychiatric Evaluation of Mental Illness” and the “Procedural Rules on Forensic Analysis,” offer little else.  As a result, pre-trial psychiatric examinations are not mandated, and instead are left in the hands of the police, the prosecutors or the court to initiate.  As seen in the case of Mr. Shaikh, this often does not happen. The party that has the most interest in conducting a psychiatric exam – namely the defense – is not permitted to initiate such an examination under Chinese law; all the defense can ask for is a re-evaluation only after the prosecution conducts one.  The re-evaluation would still be conducted by experts of the state’s choosing (See Zhiyuan Guo, “Approaching Visible Justice: Procedural Safeguards for Mental Examinations in China’s Capital Cases,” 32 Hastings Int’l and Comp. Law Review, forthcoming).  As a result, too many mentally ill individuals, both Chinese and now a foreigner, are denied the justice and protection they are entitled to under Chinese law.  

The SPC Should Give Life to the Chinese People’s Will

Mr. Shaikh’s future now lies in the hands of China’s highest court.  Because of his citizenship, the British government

British Prime Minister Gordon Brown and Chinese President Hu Jintao

has become involved, with Prime Minister Gordon Brown discussing Mr. Shaikh’s fate with Chinese President Hu Jintao this past September during the G20 Summit. 

But the British government and the international community are not asking the Chinese courts to making an exception for a foreigner or to suspend the application of its laws to a non-Chinese.  Instead, they are requesting that the SPC give life to the Chinese Criminal Law’s promise to protect the mentally ill.

This is not just a foreign request; the Chinese people themselves have repeatedly called upon the courts to offer these protections.  Article 18 of the Criminal Law reflects their sentiment.  Furthermore, during both the Yang Jia and Qiu Xinghua trials in 2008 and 2006, respectively, the Chinese people, through online discussion boards and at the courts themselves, ardently protested the lack of protection for the mentally ill.  The Chinese people understand the need to give life to the promise of justice for the mentally ill found in the Criminal Law; it is now up to the courts to make that a reality. 

The true test of a society’s criminal justice system is how well it protects society’s most vulnerable.  With Mr. Shaikh’s case, the SPC has the opportunity to establish procedures by which the mentally ill can be protected.  By either remanding his case for psychiatric examination or by performing the examination itself, the SPC will not only potentially protect Mr. Shaikh, but also the hundreds of mentally ill Chinese defendants that interact with the Chinese criminal justice system on a daily basis.

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By Elizabeth M. Lynch, October 23, 2009

The first in a series of three articles on “China – On the Road to 2025.”

On October 19, the Council on Foreign Relations and Project 2049 Institute cosponsored “China 2025,” a conference exploring where China may be in the next 15 to 20 years. Guest blogger Marcy Nicks Moody seeks to illuminate several of the arguments made and issues discussed, namely, domestic trends, foreign policy, and the economic outlook.

Lingerie entrepreneur Zhou “The Wolf” Yu from Win in China. Could more wolves make better governance?

The Center is Holding, with Troubles at the Periphery

by Marcy Nicks Moody

As discussed in a previous post, the October 1 celebrations of the 60^th anniversary of the founding of the People’s Republic were spectacular. President Hu Jintao’s updated Mao jacket, the Mount Everest float, and the female soldiers with fuschia miniskirts and submachine guns were all flawless, if unlikely. Mostly a parade of military weapons systems, the celebrations were an extraordinary display of pride in what China has accomplished over the last 60 years, and confidence in what it will accomplish over the next.

Since the beginning of ‘reform and opening’ (the period starting in 1978 when new leader Deng Xiaoping first instituted China’s economic reforms), China has consistently defied expectations about what it can accomplish. When considering where China will be in 2025, then, thinking not about where we, the outside observers, expect China to be, but rather where China itself aspires to be is perhaps the more apt starting point. And the National Day parade may offer some insight into these aspirations: the Chinese Communist Party-state of October 1, 2009 is strong and confident; it clearly sees an important role for the People’s Republic internationally, and little release of political control nationally.

But this picture stands in contrast to the China of September 2009, during which dissidents were detained, social networking websites were blocked, and civil society was suppressed. Or the China of March 2009, when a Christie’s auction of Chinese antiquities elicited an uproar among the Chinese people as a symbolic attack on its culture. Last year, Bjork, the Icelandic pop singer otherwise known for her off-beat sartorial choices, produced a similar response from the Chinese people when she called for independence for Tibet. Similar with Carrefour, the French big box store, which became the victim of a nation-wide boycott of foreign goods at the behest of a single Chinese blogger. The China of these moments finds disagreement unbearable, and portrays itself as easily harmed by the actions of relatively minor interlocutors. Strong and confident are not the appropriate descriptions of this picture.

How does one make sense of this divergence in tone?  At Monday’s “China 2025” conference, the first presenter, Minxin Pei of Claremont McKenna College argued that it is reflective of China’s domestic circumstances, which may be characterized by a combination of macro-level stability and micro-level instability. On the macro-level, there is no organized opposition to the Chinese Communist Party (CCP). China’s response to the economic crisis has been capable and robust, and there is increasing interest in the propagation of Chinese “soft power.”

Though center is holding, there are problems elsewhere. Four hundred CCP members are found guilty of corruption every day, said Professor Pei. There are 300 riots per day. Concerns about food and product safety cause great anxiety, and there is a major water pollution incident every three days. Kelley Currie, a Non-resident Fellow at the Project 2049 Institute and another speaker on the panel, noted tensions between the Han and other ethnicities at the periphery, including Tibetans, Uighurs, Manchus, and Mongols. Though none of these problems has occurred at the locus of CCP power, this dynamic, which Yanzhong Huang of Seton Hall University described as the central-local capacity gap in Chinese governance, poses a serious challenge to the effectiveness of domestic policy in China.

How, then, will micro-level instability affect China’s aspirations for and its path to 2025? To be sure, the Party-state currently has few effective methods for systematically addressing a range of local-level issues, including corruption, environmental degradation, ethnic unrest, and labor-related issues, which could eventually pose a more serious threat to the Party-state. More of an optimist, director of the documentary film Win in China Ole Schell observed that increased business and commercial activity may also drive increased transparency in China, while Professor Pei calls himself a cautious pessimist. This author, however, would rarely bet against China.

Marcy writes about China. In 2007-08, she was a Fulbright Scholar in China, where she was also a Research Fellow with the U.S.-Asia Law Institute. She received an M.A. in East Asian Studies from Columbia University and graduated from Brown University.

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By Elizabeth M. Lynch, October 21, 2009

On October 16, 2009 the Congressional Executive Commission on China (CECC) released its 2009 Annual Report examining China’s human rights record and its progress toward a rule of law.  Click here for a PDF version of the CECC’s 2009 Annual Report.

The CECC was established in 2001 after the U.S. normalized its trade relations with China.  Prior to normalization, Congress reviewed U.S. relations with China every year to determine if most favored nations status should continue to be granted to China.  Inevitably, this annual review focused on China’s human rights record and legal development.  However, with China’s accession into the World Trade Organizations (WTO), a yearly Congressional vote on trade relations with China was no longer possible.  As a result, in agreeing to China’s entry into WTO, the CECC was created to monitor China’s human rights, review its legal development, and maintain a political prisoners database.

As part of their mandate, the CECC is required to issue an annual report.  This report is thoroughly researched and provides an excellent snapshot of China’s progress in regards to international human rights standards and development of rule of law in more sensitive areas such as freedom of expression, criminal justice and access to justice.  The 2009 Annual Report is perhaps the most in depth, providing over 300 pages of data; pages 8 through 39 provide a summary of the Commission’s findings, showing both China’s progress as well as recent set-backs, and recommendations for U.S. policy makers.

Interestingly, the 2009 Annual Report was issued on the eve of President Obama’s trip to China (set for November 15-18), raising the question, will President Obama discuss any of these issues with Chinese President Hu Jintao?  On Secretary of State Hillary Clinton’s visit to China in February 2009, Secretary Clinton seemed to imply that human rights would take a backseat to other issues with China, such as the global financial crisis, climate change, and nuclear non-proliferation and regional security.  However, more recent events, such as the release of rights activist and attorney Xu Zhiyong as the new U.S. Ambassador to China arrived in Beijing and even more recent interviews with Secretary Clinton, have shown that the Obama Administration is raising human rights issues, albeit in a behind the scenes sort of way.  Will President Obama publically discuss human rights and legal development to the Chinese public in November?  And even if he does, will that portion of his speech be translated into Mandarin?

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By Elizabeth M. Lynch, October 19, 2009

Many Western China observers were dismayed by this past summer’s arrests and harassment of Chinese public interest lawyers; for many, such a crackdown evidenced a step back in creating an independent legal system.  Cheng Li and Jordan Lee of the Brookings Institution offer a different interpretation.  In their recent work, “China’s Legal System,” Li and Lee maintain that while the arrest and detention of rights lawyers like Xu Zhiyong was certainly a disappointment, China’s recent progress with legal reform overshadows this past summer’s events.  But even though Li and Lee are correct to note some of the positive developments, especially with the growth of the legal profession in China, they perhaps put too much weight on these developments at the expense of recent obstacles.

Li and Lee offer four developments that they claim bode well for legal development in China: (1) an increasing body of law, with new laws being written and old ones amended; (2) the astronomical growth in the number of lawyers; (3) increasing economic autonomy and a greater sense of professionalism in the legal profession; and (4) the rapidly rising number of legally-trained government officials.

Li and Lee cite the huge number of laws that China currently has on the books (231 individual laws, 600 administrative regulations, 7,000 local rules and regulations, and a sizable number of departmental regulations), but only pay passing attention to China’s difficulty in implementing laws on the local level, arguably the most important aspect of a functioning legal system.  To be sure, drafting laws is the first step; but without meaningful and consistent implementation, the value of such a large body of law is questionable.

Additionally, Li and Lee look to the increased professionalization of the legal profession as a positive sign.  It is true that the Chinese bar has become more professionalized and lawyers are no longer employees of the State as they were in the 1950s.  But Li and Lee make no mention of the fact that the All China Lawyers Association and local bar associations are government-controlled and answer to the Ministry of Justice (MOJ).  Prof. Jerome Cohen of NYU’s U.S.-Asia Law Institute has consistently commented on this lack of independence of the Chinese bar and has noted the role that the MOJ has played in influencing bar associations to punish rights lawyers that go a bit too far for the government’s taste.

Finally, Li and Lee are correct to note that there has been an increase in the number of legally trained government officials rising through the ranks.  Most officials in the current leadership have a science background, with very few with a background in law or even the social sciences.  In the next generation of officials, currently being groomed for powerful positions in the Party and the government, a majority have a background in the social sciences.  But only one, Li Keqing, has a background in law.  Thus, a shift toward leaders with legal training is not as apparent as Li and Lee contend.  Furthermore, such a shift is not reflected in the positions in the Chinese government that one would think necessitate legal training.  Hu Jintao’s recent appointments to the MOJ and the Central Party Political-Legal Committee (the committee responsible for all legal institutions) all lack legal training; instead, many have training in the police force providing for a more militant view of justice.  Even the new president of the Supreme People’s Court, Wang Shengjun, has no formal legal training.

China’s legal development has come a long way since the era of Mao, when law was merely a tool for class struggle and lawyers were often harshly persecuted.  But using the Cultural Revolution as a baseline will only impede China’s progress; arguably, everything is better now than it was during the Cultural Revolution.  China has made progress, but its progress should not be overstated and its limitations need to be noted in order to move forward.

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By Elizabeth M. Lynch, October 12, 2009

In a development that caught most foreign media outlets by surprise, the Urumqi Intermediate Court tried and sentenced the first seven of over 200 defendants on Monday for crimes relating to the July 5 riots.  After a trial that lasted less than a day, six of the defendants, all of which were of Uighur descent, were sentenced to death; the remaining defendant was given life imprisonment.  All of the defendants were given the uniquely Chinese punishment of lifelong “deprivation of political rights.”

Back in August, the China Daily, an official government newspaper, stated that trials relating to the July 5 riots in

Monday's Trial in Xinjiang

Xinjiang would begin in the middle of August.  The reason for the two month delay remains unknown.  Additionally, while Chinese papers report that the trial was public, that is debatable.  According to the government controlled media, the 400 people in the audience included officials from the Urumqi, representatives from the National People’s Congress (NPC), Chinese Communist Party (CCP) officials, relatives of the defendants, and “a group of people of various elasticities and walks of life.”  However, it is questionable if anyone else was aware of the trial as it was occurring; there was no official announcement prior to trial.

In addition to working on the meaning of a “public trial,” the Chinese criminal justice system still has a ways to go in becoming accustomed to an adversary criminal justice system.  Historically, China has had an inquisitorial criminal justice system, one based upon the civil law systems of Germany, France and other continental European countries.  In that system, the judge plays an active and central role, reviewing all evidence the prosecutors amass.  The defense attorney’s role is minor compared to the U.S. system, an adversarial one where the defense attorney and the prosecutor duke it out with the judge and jury remaining very passive.

Neither system is better than the other; both have their advantages and disadvantages and are more a choice of culture than anything else.  However, in 1996, China amended its Criminal Procedure Code to adopt more adversarial-like procedures, moving away from its traditionally inquisitorial system.  But as the trial of the seven Uighurs show, many of those amendments, even 13 years after their adoption, have yet to take hold.  The Chinese press reported that the prosecution presented oodles of evidence including the testimony of eye-witnesses, reports of the incidents, and pictures and video of the alleged events.

Defendant being brought into the courtroom in Monday's trial in Xinjiang

However this evidence was not subjected to any adversarial testing, a key, if not defining element of an adversarial system.  Instead, the Chinese press reported that the defendants merely told their side of the story with their lawyers offering their own opinions.  Questioning of the prosecution’s witnesses, or calling in experts to analyze any of the prosecution’s evidence was completely absent.  Instead, the defendants and their lawyers reverted back to their roles in an inquisitorial system, passive participants with few affirmative rights.

Nothing could be worse than a system that purports to be an adversarial one but does not allow the defense to perform the essential role of such a system – actually challenging the prosecution’s case.   China is slated to amend its Criminal Procedure Code in the next year or two.  Hopefully it will pull back on adapting more elements of an adversarial system, since as of yet, it has a long way to go before it takes hold.  And there is nothing wrong with reverting back to a more inquisitorial system, a system that works well in continental Europe.

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By Elizabeth M. Lynch, October 7, 2009

The U.N. Climate Change Conference in Copenhagen is exactly two months away but has China and the U.S. made any headway in coming to terms with their differences on the climate change front?  In a new article published in the Tsinghua China Law Review,  senior attorney at the U.S. Environmental Protection Agency (EPA) Steve Wolfson offers a positive outlook on negotiations with recommendations on how the U.S. and China can move forward to reach a meaningful climate change agreement.

In “Gathering Momentum for U.S.-China Cooperation on Climate Change”  Wolfson reviews the issues that have plagued climate change negotiations between the U.S. and China and the progress that has been made:

• A Developed Country or a Developing Country? – China puts itself squarely in the developing nation category.  Developing nations were exempt from greenhouse gas emission targets for the Kyoto Protocol and will likely be again for the Copenhagen agreement.  But is China a developing country in the way that Cambodia or Ghana is?  Arguably no and given the fact that China surpassed the U.S. in 2007 for greenhouse gas emissions, the U.S. and other developed countries should push China forward in agreeing to some type of targets.
• Historic Responsibilities of the Western World – China rightfully claims that the planet’s current climate change crisis is a result of the centuries of development in the Western world.  China’s current development over the past 20 years has not caused the current crisis.  But the Western countries argue that, unless it limits its greenhouse gas emissions and works on its energy efficiency, China’s future development is what will make the present crisis into a death sentence for the world.  However, as Wolfson points out, there has been some movement by the U.S.  When Secretary of State Hillary Clinton visited China in February, she acknowledged the special responsibility of the U.S. due to its role as the largest historic emitter of greenhouse gases.  In his speech before the U.N. two weeks ago, President Obama also admitted to the historic differences between the U.S. and China in terms of greenhouse gas emissions.
• China’s Positive Progress on Controlling Carbon Emissions – Wolfson analyzes the various laws that China has passed to curb its greenhouse gas emissions and increase its energy efficiency.  He also takes note of China’s various initiatives to restructure its economy to improve its efficiency and reduce its emissions.

While Wolfson’s article offers much hope for U.S.-China progress on the eve of Copenhagen, he concludes on a slightly somber note, remarking on China’s inability to implement many of its national laws on the local level.  This is a problem that permeates all of Chinese society: the the Sanlu milk powder scandal last year, the recent and wide-spread lead poisoning  of children in villages that boarder factories, the importation of toys laced with lead from China; school buildings that do not withstand an earthquake; these are all examples of a regulatory system that fails on the local level.

China is sincere in its desire to be a leader in clean technology and to clean up its environment.  But its problem now is implementing any agreement that comes out of Copenhagen, and this is not because China does not want to; it is because China does not know how.

We at China Law & Policy have recommended in past posts and continue to recommend that U.S. policy makers seize the opportunity that Copenhagen offers to assist China with its legal development in the regulatory field.  Copenhagen should not just be about agreeing to targets; an agreement from Copenhagen should also include the U.S.’ commitment to provide resources on implementation and governance, knowledge exchanges between U.S. environmental regulators and Chinese environmental regulators, and an open-mindedness that it is going to take China some time to establish an effective regulatory scheme.  By assisting China with its regulatory development, the U.S. will not only make headways in establishing a greater sense of rule of law but could potentially benefit the lives of 1.3 billion people in a very real and tangible way.  Wolfson’s article reminds us of this.

Click here to Read Steve Wolfson’s Gathering Momentum for U.S.-China Cooperation on Climate Change.

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By Elizabeth M. Lynch, October 5, 2009

Originally posted on The China Beat.

Japan's New Prime Minister, Yukio Hatoyama

The United States was not the only country that voted for change this past year.  On August 30, 2009, after fifty-four years of essentially one-party rule, the Japanese people voted overwhelmingly to usher in a completely new government and a new way of thinking.  The Liberal Democratic Party (LDP), which ruled Japan since 1955, was completely rejected.  Obtaining only 119 out of 480 seats of the House of Representatives (the lower Diet), the LDP took a second seat to the younger and fresher Democratic Party of Japan (DPJ).  The DPJ won 308 seats in the House, ensuring that their leader, Yukio Hatoyama, would become Prime Minister.

The DPJ’s victory guarantees that much change will come to Japan.  Already in the first few weeks of Prime Minister Hatoyama’s tenure, he has called for the complete transformation of the traditional government-bureaucracy relationship, the need to rework Japan’s economic recovery plan, and has called for a review of U.S. troops in stationed in Japan.

But little has been made of the impact of Japan’s new government on its relation with its large and imposing neighbor to the west:  China.  Will the Hatoyama government seek to work with China or further alienate it China by continuing

Prof. Gerald Curtis, Columbia University

to glorify Japan’s World War II past?  Is Japan’s goal to look more inward to Asia at expense of its relationship with the U.S.?  To answer these questions, I spoke with Gerald Curtis, a Columbia University political science professor and preeminent expert on Japanese politics, government and society.   In analyzing the future of Japanese-Chinese relations, Prof. Curtis left me with another word that has been used frequently in recent elections:  hope.

Transcript of Interview with Prof. Gerald Curtis

To Listen to the Interview, Click Here

EL: My first question is: how do you envision the China-Japanese relationship changing with the change of government in Japan?

GC: Well, I think it’s going to get better.  It’s already gotten better in the last few years, but it will get better.  One reason being Hatoyama’s view on the so-called history issue, on Japan’s responsibility for its behavior during the War and the years leading up to the War, is very heart felt and the Chinese will appreciate his view on the history issue.  Unlike some of the LDP leaders who apologized but didn’t really mean it, Hatoyama believes Japan was behaving very badly and will say so.  So I think that will be very good.  Also, he wants to see a stronger relationship with China.  He’s not going to go to the Yakasuni shrine which has been a source of difficulty.  He wants to create an alternative site in which foreign leaders can go, as well as Japanese leaders, to pay respects to all those who died in the War regardless of nationality.  He wants to encourage greater cooperation on issues like environmental, pollution control and so on, which the Chinese desperately need.  And I think he understands well that improving relations with China doesn’t come at the expense of relations with the U.S.  The U.S. wants to improve relations with China, so does Japan, but the U.S. and Japan together can do a lot in dealing with China and some of the problems it faces.  So I think the relationship is likely to get better.

EL: And another question is, in regards to his [Hatoyama’s] request to the [U.S.] military bases to close, my understanding is that Japan has been open to having a U.S. military presence in Asia in order to protect it against any problems with China or if China happens to invade Taiwan or become more bellicose toward Taiwan because that would adversely impact shipments to Japan.  What will Japan do, or does it no longer fear a military threat from China?

GC: Hatoyama has not suggested that the U.S. military presence in Japan should be abolished.  They think that some of, the extent of the presence in Okinawa is unsustainable, that there are simply too many bases in too many congested urban areas in Okinawa with no ostensible reason for there being there in terms of the threats that either Japan or the United States faces.  So they want to see some adjustments made but I think the government understands that this military alliance with Japan is critical for Japanese security and that to have a military alliance you have to provide some facilities but maybe not as much as currently exists.  So that is what the negotiation will be about.  It’s not about eliminating the U.S. military presence.

EL: And one more follow-up question.  Has Prime Minister Hatoyama made any direct overtures yet to the Chinese government, as far as you know?

GC: Yes, he met with Hu Jintao yesterday [Sept. 22, 2009] in New York and that was there first face to face and I believe he is going to visit Beijing in October for an extended discussion with the Chinese leadership.  But he has already taken the initial step with this bilateral here in New York City.

EL: One last question, one last question.  In regards to the ability, because there has been some issues, the Chinese-Japanese relationship has become more of a politically sensitive relationship in both countries, in China as well as in Japan, especially when the Japanese people saw the response of the Chinese people protesting against Japan.  Do you think that his [Hatoyama’s] making overtures with the Chinese will have a negative impact on his popularity in Japan?

GC: No, not at all.  Nobody wants a fight or a lot of tension with China.  I think his way he deals with China will be welcomed in Japan.  Hu Jintao in the meeting with Hatoyama yesterday was talking about the need for more cultural exchange and the need to educate both their publics about the importance of the relationship.  That came from the Chinese side, that’s really very important.  Neither country wants trouble with the other.  China doesn’t want trouble with anyone right now, they have to concentrate on their economic development, they don’t need any fights with neighbors and with Japan in particular.  So I think there’s the, sentiment is to try to move this relationship forward in a positive way.  I think they have a good shot at it.

EL: Ok.  Thank you very much, I very much appreciate it.