The Rule of Law Perspectives from the Pacific Rim The Rule of Law Perspectives from the Pacific Rim With a Foreword by Jerome A. Cohen Published by THE MANSFIELD CENTER FOR PACIFIC AFFAIRS With Funding from The Starr Foundation THE MANSFIELD CENTER FOR PACIFIC AFFAIRS The public policy and international outreach center of the Maureen and Mike Mansfield Foundation. © 2000 by the Mansfield Center for Pacific Affairs. www.mcpa.org All rights reserved, including the right to reproduce this document or any part thereof, except for the inclusion of brief quotes in a review. The publication of The Rule of Law: Perspectives from the Pacific Rim was made possible by a grant from The Starr Foundation. The perspectives and opinions expressed by the contributors to this publication are those of the authors and do not necessarily reflect the views of the Mansfield Center for Pacific Affairs or its funding sources. Library of Congress Control Number: 00-134300 ISBN Number: 0-9635265-9-6 TABLE OF CONTENTS PREFACE AND ACKNOWLEDGMENTS ........................................... vii L. Gordon Flake FOREWORD: FORWARD! ............................................................. xi Jerome A. Cohen THE RULE OF LAW: Defining It and Defending It in the Asian Context ............................... 1 Barry M. Hager TOWARD A LEGAL ENLIGHTENMENT: Discussion in Contemporary China on the Rule of Law ....................... 13 Albert H. Y. Chen NO PAIN, NO GAIN: Steps Toward Securing the Future of Chinas Legal System ................... 55 Peter Corne RULE OF RULES: An Inquiry into Administrative Rules in Chinas Rule of Law Context .......................................................... 71 Xixin Wang THE JUDICIAL SYSTEM AND GOVERNANCE IN TRADITIONAL CHINA ............................................................. 91 Weifang He WTOS IMPACT ON THE RULE OF LAW IN CHINA ........................ 101 Martin G. Hu THE RULE OF LAW IN TAIWAN .................................................. 107 Tsung-fu Chen THE RULE OF LAW IN VIETNAM: Theory and Practice ................................................................... 123 Truong Trong Nghia IN DEFENSE OF ASIAN COLORS ................................................. 141 Takashi Oshimura THE RULE OF LAW AND ITS ACCEPTANCE IN ASIA: A View from Korea .................................................................... 145 Joon-Hyung Hong v FOREWORD: FORWARD! Jerome A. Cohen The Mansfield Center for Pacific Affairs Rule of Law project, focusing on the Confucian culture area, comes at a good time. There is intense ferment over the Rule of Law (ROL) in every Northeast Asian political community. Even the Democratic Peoples Republic of Korea is inexorably being drawn to the flame, belatedly driven by the same desire for economic progress that has motivated the neighboring regimes that share its political-legal tradition. Concern for the ROL is hardly new for Northeast Asia. It has marked the contact, cooperation and conflict between Western nations and the Sinocentric world order since the eighteenth century. The succession of bitter disputes between Manchu China and the West leading up to the Opium War of 1839 in large part arose from dramatically different concepts and practices in the administration of criminal justice. The differences between East and West had not always been so marked. For example, sixteenth century Catholic missionaries and merchants from the Iberian Peninsula were favorably impressed by their glimpses of criminal justice in Imperial China. Against the background of the Inquisition, Chinese proceedings seemed comparatively rational, fair and, as we say today, transparent. By the end of the eighteenth century, however, the West had begun to appraise China in accordance with newly-acquired standardsthose that had emerged from the seventeenth century English revolutions and their American and French sequels. Chinese law and procedure had altered little during this period but the West had moved the goal posts, and the slogans of the newly-enshrined rights of man accompanied, and were often used to justify, the increasing impact of Western imperialism upon the Sinocentric world. The Opium War forced open China, resulting in the first in a series of what came to be known as unequal treaties introducing extraterritorialitythe administration of Western justice in the foreign treaty ports established on Chinese soil. Soon after, in 1853, the Black Ships of Commodore Perry brought the American version of the ROL to Tokyo Bay, imposing extraterritorialitythe symbol of sovereign inferiorityupon a Japan that had long closed itself off from outside influences. Even the Hermit Kingdom of Korea, traditionally the sheltered tributary of the Central Realm in Peking, began to experience the thrust of Western expansion and values. And the xi THE RULE OF LAW: Perspectives from the Pacific Rim Mansfield Dialogues in Asia peoples of what soon came to be known as Indo-China had less success than the Koreans in resisting the intrusion of the West. They succumbed to la mission civilisatrice of French colonialism, which introduced a harshly-distorted version of the ROL far different from that which had been evolving in the home of liberty, equality and fraternity. Yet Korea, like Taiwan, which had earlier experienced Dutch and other Western efforts to establish bases on the island, was soon subjected to newly-minted Japanese colonialism. Japan, the quickest study in East Asia, by the start of the twentieth century not only had put an end to the detested Western extra- territorial regime on its own soil but also had begun the process of imitating the Western imperialism to which it had just been exposed. In both respects Japan made use of its recently assimilated knowledge of Westernlargely continental Europeanlaw. At home, the government of Emperor Meiji met the Western price for terminating extraterritoriality by erecting, on top of the Confucian- influenced Tokugawa legal tradition, laws, institutions and procedures that were largely borrowed from an imperial Germany that appeared to be Europes rising power. Abroad, Japan resorted to rule by law, rather than the rule of law, to control its new colonies with skill equal to that of its Western colonial rivals. China was much slower than Japan to respond to the challenge of Western imperialism and to appreciate the uses of Western law. To be sure, by the 1860s the imperial court in Peking had begun to understand the utility of learning the public international law of the West as an instrument of self-defense against Western demands. Yet it was not until Japans humiliating defeat of China in 1895, followed by its 1905 victory over Russia, a white imperialist power, that Chinese leaders began to see the need for significant domestic legal change as part of a broad program of reforms. These reforms were designed to strengthen the collapsing Manchu dynasty and to emulate Japan in eliminating the unequal treaties imposed by the West. The Manchu effort, of course, proved too little and too late. Yet spasmodic importation of Western legal forms continued during the turmoil of the Republic of China, which was founded in 1912. After Chiang Kai-sheks Nationalist Party came to power in 1927, it launched an impressive, comprehensive effort to establish a German-style legal system, largely filtered via the Japanese model but importantly influenced by Leninist concepts of State and Law. That system served as an instrument of state control, as a facilitator of economic development and international business and, above all, as the means of ending the unequal treaties and especially the hated exercise of foreign judicial power in Chinese territory. xii FOREWORD: FORWARD! Jerome A. Cohen The Japanese invasion that began in 1931 and the civil war between Communists and Nationalists hindered and distorted this budding program. Nevertheless, under the pressure of the need for wartime cooperation, Chinas Western allies finally agreed to the termination of their extraterritorial treaty rights in 1943, even though they were far from convinced that the administration of justice in Chiangs China met Western standards. The subject deserves far better than the potted history recited above. I refer to it here to alert newcomers to the field that, in assessing East Asias understanding of and enthusiasm for the ROL, we have to take account of not only its traditional political-legal culturethe preference for morality over law and for extra-judicial compromise over litigation, the association of law with punishment, the concern for community rather than individuals, the absence of any separation of powers and independent judiciarybut also the historical circumstances in which the perceptions of Western law in each country of the region were shaped. Although many East Asians came to see the ROL in its best sense as holding out the promise of improved government, enhanced protection of individual rights, and greater economic development and international cooperation, for othersespecially those who lived under colonialismWestern-style law, like their own traditional legal systems, was seen as an instrument of control and even oppression rather than as the finest achievement of civilization. To many increasingly nationalistic Japanese and then Chinese, any doubts about the wisdom of importing so alien a product were overcome by their determination to do what was politically required to rid themselves of the incubus of extraterritoriality, so that their countries could join the ranks of sovereign