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Home , Constitutional Court, In open court, Law reform

RULE OF Law in Political Transitions: Lessons from East Asia and the Road Ahead for China

By Jerome A Cohen

general principles. It had few useful and The task of forging this huge and even fewer bilateral or multilateral agreements inexperienced group, originally staffed mostly with other countries to offer guidance on legal by former military and police officers without problems. The National People’s Congress legal education but now increasingly recruited (NPC), nominally the country’s highest from law school graduates, into professionally government authority, was in the process of competent, honest, impartial and independent resurrection. The were a shambles. The decision-makers is formidable. To do so the procuracy, which is responsible for criminal Supreme People’s has labored mightily, prosecutions and is supposed to serve as the within the confines of Party policy and the SPC’s “watchdog of legality”, had been non-existent limited political power. for twelve years, and Chinese for over Much the same can be said about the twenty. China’s Soviet-style commercial procuracy. It now has almost as many legal arbitration institutions were not suitable for personnel as the courts and is recruiting more China’s Legal System in Transition settling disputes with Western companies, and and more law graduates. Lawyers, reestablished In December 1978, when the Chinese legal education and publications were only in 1980 and currently numbering approximately Communist Party’s new leadership under Deng beginning to revive. 120,000, play an increasingly important role in Xiaoping announced the “Open Policy” that Today, China plainly has a formal legal China’s cities, especially in civil and business launched the country’s impressive modernization system, one that, from the perspective of a transactions. Their ranks too are strengthened program, it also recognized the importance of generation ago, can be seen to have made each year by thousands of new law graduates, constructing a legal system commensurate with significant progress. An increasingly robust who now have to pass, together with would-be China’s new ambitions. At that time, the Soviet- National People’s Congress and its Standing and procurators, a challenging unified type legal system that the PRC had adopted in Committee have enacted a huge amount of bar examination, with a pass-rate, last year, of the early 1950s lay in tatters, a victim of twenty on topics of all description. These laws only slightly over 11%. years of political turmoil that had culminated in have been supplemented by myriad regulations Legal education has become one of the of the State Council, China’s leading fastest-growing branches of Chinese academic institution, and the central ministries and life, and the country now has almost 400 law The Cultural Revolution, whose spirit was encapsulated by a People’s commissions under it, as well as provincial and schools of various kinds. Bookstores that never Daily editorial entitled “In Praise of local people’s congresses and governments. The before had a legal section or even a shelf devoted Lawlessness”! Supreme People’s Court (SPC) and the Supreme to law are now filled with collections of laws People’s Procuracy are both now vigorous and analytical treatises and teaching materials. organizations, although, like the State Council, They also carry “how to do it” self-help manuals The new legal system was to fulfill many they are subordinate to the NPC. They too have on many topics such as civil and administrative functions. It would provide for the orderly and issued large numbers of “interpretations” and other law procedures, tax law and real estate efficient conduct of government not only at the documents, either separately or with each other transactions, for those who do not have access central level but also at the provincial and local and with other agencies, that are the substantive to or wish to avoid lawyers. There are now over levels of a vast land and population. It would equivalent of supplementary legislation. The PRC 90 law magazines, rife with law reform proposals. facilitate domestic industrial and commercial has also concluded with other governments a large Within the limits of Party policy, which fluctuates development and international trade and number of bilateral agreements bearing upon the with the time, place and topic, the Internet has investment. And it would suppress what was domestic legal system and now adheres to many spawned nationwide legal discussions. It makes deemed to be antisocial behavior, while assuring multilateral treaties concerned with international available information and views about law that greater fairness and accuracy than had prevailed business law and human rights. newspapers and television, also under Party in the administration of during the three control, may have slighted. preceding decades of Communist rule. China today has a nationwide Legal developments relating to foreign trade, At the time, only a quarter century ago, China court system including over 3,000 technology transfer and investment have led this displayed virtually none of the indicia of a formal basic courts and almost 200,000 progress. During the decade prior to the tragedy legal system. Its was merely an judges. of June 4, 1989, the PRC’s desire for foreign unenforceable collection of political slogans and direct investment stimulated steady creation of

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a useful legal framework. The PRC’s opening (social connections based on family, friendship, who dictate court decisions in sensitive cases, of capital markets in the early 1990s initiated a school or local ties). Since their appointment, are free under the law to impose the harshest new wave of financial legislation and regulation, promotion, assignment, compensation and sentences “if the circumstances are serious” and and its 2001 entry into the World Trade removal are all at the pleasure of local especially “if the circumstances are especially Organization has produced a host of substantive government and Party leaders rather than the serious.” and institutional reforms that should continue Supreme People’s Court or provincial High Protections afforded by the Criminal for some time. China’s international commercial Court, they and the litigants who appear before Procedure Law (CPL) are too few, ineffectual, arbitration organization is now the world’s them are subject to the abuses of “local and riddled with exceptions to permit meaningful busiest, and almost 200 cities have established protectionism”. defense. When police or prosecutorial their own arbitration commissions to handle Even PRC arbitration, to which many foreign investigators wish to detain a person, they can domestic and foreign-related disputes. businesses and Chinese turn in an effort to avoid do so on their own, without the approval of any Development of law and legal institutions vagaries of courts, sometimes suffer from the outside agency. They need not notify the suspect’s has contributed to a burgeoning popular same types of pressures that distort judicial family or work unit of the detention, the basis awareness of law and indeed “rights justice. Prosecutors, who are supposed to guard for it or the suspect’s location if, in their opinion, consciousness”. Profound social and economic against such illegal conduct, are usually too weak to do so might interfere with the investigation. change has fostered this trend. An economy politically and plagued by their own In most PRC criminal cases the suspect is formerly dominated by state-owned enterprises vulnerabilities to remedy the situation. denied “release under guaranty pending ”, and the “state plan” is now increasingly free, the Chinese equivalent of bail, again a decision transactional/contractual and open to private Criminal Justice made by the investigating agency alone. Nor entrepreneurs. do the investigators need outside approval if they A society that was once one of the world’s The weakest link in the PRC decide to search the suspect’s residence, office most egalitarian now features accumulations of legal system is criminal justice. or car. wealth that have created one of the world’s If the suspect’s family can afford a , biggest gaps between rich and poor. Much of the lawyer can be prevented from meeting his this wealth has been created by collusion between The codes of criminal procedure and criminal client for the entire investigation period, which government officials, still in command of land law, first enacted in 1979, three decades after can last for months or even years, if the and other resources, and corrupt entrepreneurs. the founding of the PRC, and revised in 1996 investigating authority claims that the case This, in turn, has generated not only demands and 1997, respectively, lend themselves to abuse involves “state secrets”. In cases where the lawyer for the protection of the personal and property by law enforcement authorities. The PRC is, of does manage to meet his client, that meeting is rights of the successful but also even stronger course, far more notorious than the United States usually monitored by the police. demand for such protection from losers in the for its resort to the death penalty in many The lawyer, not considered by the law to ongoing socio-economic transformation, who thousands of cases each year, with no fewer than be a “defense lawyer” until the investigation desperately seek legal remedies to alleviate 68 statutory provisions authorizing executions. has concluded and the case has been sent to the perceived injustices. Women, minorities, the The Chinese Government is so embarrassed by prosecutor for indictment, is usually not permitted disabled and other victims of discrimination the number of executions it carries out that the to question his client about the facts of the case invoke China’s Administrative Litigation Law precise figure is one of its most closely guarded but can only introduce him to the elements of and related legislation to challenge arbitrary secrets. the charge and his rights under the law. official action. The is so broad and vague Nor may the lawyer begin his own inquiry Farmers strive to use the courts to stop unfair regarding both the conduct it prohibits and the into the case, gathering evidence and interviewing official land requisitions or financial impositions punishments it prescribes that the regime has no , until the official investigation has by local cadres, and urban residents try to rely difficulty imposing severe sentences on persons ended. Even then, interviewing witnesses is on the law to prevent developers and city officials engaged in unapproved political or religious dangerous because of the risk that a , from demolishing their housing without adequate activity. Although “counterrevolutionary” conduct under government pressure, may change his compensation. is no longer prohibited, its prohibition has been statement and the lawyer might then be accused Too often such efforts fail. Legislation is replaced by the equally imprecise crime of of falsifying evidence. frequently inadequate, and many conflicts “endangering state security”, which is often The suspect has no right to silence, and between national and local norms, and the invoked. So too is the sending abroad of “state reticent suspects are frequently subjected to proliferation of regulations, interpretations and secrets”, loosely defined, and often applied to torture, despite the Criminal Law’s explicit other edicts often produce incoherence and information designated as secret after the fact, prohibition of such conduct in accordance with inconsistency. There are too few able lawyers, by the judicially unchallengeable National State the obligations the PRC assumed when ratifying and those who are not afraid to undertake Secrets Bureau. adherence to the UN Convention against torture, sensitive cases sometimes lose their license to Also punishable is the sending abroad of in 1988. practice law or are detained and punished for “intelligence”, which turns out to be merely Suspects are also frequently subjected to “damaging public order” and similar offenses. information in the public domain that the regime “overtime detention”, even if one accepts the Judges are often vulnerable to corruption, does not want disseminated outside China. investigating authorities’ dubious interpretations political control and the pressures of “guanxi” Courts, and those Party and government leaders of the time limits set forth in the CPL.

22 AmCham September 2005 PRC to changes in law and practice in the failure of its institutions to deal adequately with The outstanding feature of PRC criminal justice area as profound as those changes a rising tide of public grievances relating to criminal investigation is the inability in economic law and practice required by the environmental pollution, real estate manipulation, of the suspect, his lawyer, family or PRC’s entry into the WTO. unauthorized local financial demands, corruption, friends to challenge the legality of Regardless of ICCPR ratification, the discrimination and other official abuses. any official actions before an Chinese Government, under strong domestic Increasingly, interest groups, fueled by a independent tribunal or other agency. pressures to eliminate some of the most glaring shared sense of injustice, are taking to the streets defects in the CPL and some of the worst and even rioting. These protests threaten political, Any attempt to obtain administrative distortions of the CPL in practice, has already economic and social stability and indeed the reconsideration of investigators’ decisions by made clear its determination again to revise the common people’s belief in the legitimacy of their higher authority is usually fruitless. CPL. Although optimists predict that the newly- Communist rule. In principle, the local procuracy should be revised CPL might appear by next year, we Too often, the courts, instead of enforcing willing to review questionable decisions or should not underestimate the magnitude of the national laws against lawless local officials or practices, but political realities usually preclude task. A multitude of controversial issues awaits conflicting local regulations, serve as the this. The procuracy is without incentive to self- the NPC, and achieving a meaningful instruments of the local elite against the monitor its own investigations, as in official reconciliation of the conflicting views of the victimized populace. And lawyers brave enough corruption cases, and even less likely to intervene Ministry of Public Security, the Ministry of State to assist protesters in their efforts to resort to in an investigation by either the Public Security Security, the Ministry of Justice, the Supreme courts in order to vindicate their rights are often Bureau or the State Security Bureau, whose People’s Court, the Supreme People’s Procuracy, detained or intimidated by local police and investigators generally outrank their procuracy the All China Lawyers Association, influential prosecutors. counterparts in the Party’s political pecking order. academic experts and relevant Party It would be logical for the PRC leadership Any effort to seek is rebuffed organizations will require enormous legislative to try to lift local courts from the mire of “local by the courts on the ground that they do not skill, time and energy. protectionism” by placing the power to appoint, enter a criminal case until after indictment. And promote, assign, compensate and remove basic neither the local people’s congress nor and intermediate court judges in the Supreme Pending comprehensive revision government, the Party Discipline and Inspection People’s Court or the provincial High Courts so of the CPL, the NPC may decide to Committee or the Party Political-Legal make certain urgently needed that local judges would become more responsive Committee that coordinates cooperation among reforms earlier. to national needs rather than local pressures. the government law enforcement agencies will It would also be helpful to review current prove helpful. The result is unchecked discretion criteria for compensating, assessing, promoting for the investigators and total frustration for the For example, should the NPC do something and removing judges. suspect and his lawyer. about “reeducation through labor” (“laojiao”)? Similarly, we might expect enlightened Trial has its own frustrations for the defense. It is an administrative punishment that is not leaders to sympathize with the growing Witnesses rarely appear in court. The prosecution authorized by NPC legislation (as now required consensus, at least among lawyers and scholars, simply reads out their written statements, thereby by other NPC legislation) and that is dispensed that Section 306 of the Criminal Law should be depriving the accused and his lawyer of the by the police, who can send someone to labor repealed, in order to encourage more lawyers opportunity to cross-examine them, granted in camp for three or four years without the to take part in and vigorously defend criminal principle by the 1996 CPL revision. Rules of participation of lawyers or the approval of the cases, and to try to channel public disputes into evidence are rudimentary, and illegally obtained procuracy or the courts. the courts instead of the streets. evidence is often admitted in practice. Although the Ministry of Public Security Defense lawyers must be careful during trial, has been waging a public relations and lobbying Emerging as well as during earlier stages of the process, campaign to retain “laojiao”, even conducting Although the PRC has had several not to alienate prosecutors, who have the power limited experiments to allow lawyers into the in its 56 years, until recently few under Section 306 of the Criminal Law, a proceeding in an effort to avoid losing this major individuals or groups took seriously the idea provision aimed squarely at lawyers, to prosecute sanction, its continuing existence is blatantly that the provisions of the Constitution might them for assisting in the falsification of evidence. inconsistent with the premises of the CPL and actually be enforceable, whether through the NPC This “Sword of Damocles”, as it is known, has the Law on Legislation, as well as perhaps the or the courts. been invoked over 200 times. Constitution itself, as many Chinese judges, officials, lawyers and academic experts have Neither Mao Zedong nor Deng Law Reform Prospects pointed out. Xiaoping endorsed Montesquieu’s Yet we can expect robust law reform efforts Perhaps we can also expect an expanded . Nor did they to continue in China, even in the field of criminal role for the courts, and further strengthening of embrace the revered Sun Yat-sen’s justice. The PRC is still considering whether the courts and the legal profession in order to distinctive five-power division or not to ratify the International Covenant on enable the courts to play this expanded role. Civil and Political Rights (ICCPR), which it The Chinese Government is plainly facing adopted by China’s pre-Communist signed in 1998. Ratification would commit the a domestic crisis of confidence caused by the Government, that of Chiang Kaishek’s Nationalist

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Party, which is still in use by the Republic of any better chance of acceptance for a Female civil servants petitioned to invalidate China on Taiwan and which is only now beginning constitutional amendment that would establish the requirement that women retire five years to totter. In the PRC system, following the Soviet a separate and independent Constitutional Court, earlier than men, and thousands more have model, the national , the NPC, is the along the lines of the German model that challenged national and local regulations single supreme power, and all other government influenced the Republic of China on Taiwan and authorizing demolition of their housing. institutions—executive, prosecutorial and the Republic of Korea? These complaints have not yet resulted in a judicial—are subordinate. Power to interpret and Many reformers recognized that the Party constitutional decision by the Standing apply the Constitution is lodged in the Standing leadership is not prepared to endorse such a Committee but they have spurred administrative Committee of the NPC, not in the courts. radical institutional move toward the rule of law. reforms and added to popular support for the Yet, given the realities of Communist Party They believed that realism called for building concept of . control of government and public life, until two on the existing constitutional structure by having While popular demands are compelling the years ago no one activated this constitutional the NPC prescribe procedures that would NPC Standing Committee to inch forward in decision-making mechanism. The accepted view facilitate efforts to invoke the dormant the development of a mechanism for reviewing was that the Constitution recorded the nation’s constitutional decision-making power of the NPC the constitutionality of administrative regulations, and the regime’s basic principles, outlined the Standing Committee, and, with little fanfare, if not yet legislation, they are also beginning to government structure and set forth the rights that was accomplished as part of the Law on stimulate the courts to reconsider their long-held and duties of citizens. Legislation adopted in 2000. view that judges cannot refer to constitutional It served many purposes—as national rights even in deciding cases in which plaintiffs symbol, ideological rallying point, educational are only seeking relief against concrete This new procedure has actually instrument, policy vehicle and propaganda tool— begun to be used, and in a dramatic administrative acts or private wrongs. but was not generally thought to be the source fashion that captured public The led the way for lower of enforceable legal rights. Recently, as a attention. When in 2003 a hapless courts in its landmark 2001 interpretation consequence of rising rights consciousness, university graduate named Sun approving reference to the constitutional right reflected in and further spurred by constitutional Zhigang died in police custody, the to education as a basis for awarding the plaintiff amendments mandating respect for human rights media and Internet ignited a storm relief against both a private party and a government and property rights, the idea of translating the of protest against the long unpopular agency, in a suit that was not brought to invalidate promises of the Constitution into real life began State Council regulation on “shelter a law or regulation but to establish the liability to attract China’s expanding legal community. and repatriation” of migrants under of the defendants. Trial courts have since begun which Sun had been detained. An important stepping-stone was 1989 to grapple with a range of anti-discrimination enactment of the Administrative Litigation Law, complaints brought to challenge concrete which for the first time made the legality of a Three courageous law professors then administrative actions against individuals. broad range of concrete official decisions, but petitioned the NPC Standing Committee to On at least two occasions the bringing of a not abstract legislation or regulations, subject invalidate that regulation as unconstitutional. suit alleging denial of equal protection of the to judicial scrutiny. By swiftly revoking the regulation, the State laws resulted in termination of the challenged The concept that government itself should Council moved to avoid the necessity for a conduct, even though the court ultimately be under the law—and not merely use the law constitutional decision by the NPC Standing dismissed the claim as not among those as an instrument of its will—was strengthened Committee. authorized for adjudication under the by subsequent adoption of several other laws, This disposed of the immediate constitutional Administrative Litigation Law. In two other especially a State Compensation Law offering challenge, but it also vividly demonstrated to cases, the court apparently granted relief to limited redress, again through the courts, for the country that a new legal weapon had entered plaintiffs without clearly indicating its reliance certain wrongs inflicted by officials. the political arena. on constitutional claims. Without a constitutional amendment or at Anticipating a flood of similar petitions Plainly, this is an area that is only beginning least authorizing legislation, could the courts, relating to other grievances, the Legal Work to emerge, and the task of the foreign observer which are subordinate to the NPC, also begin Committee of the Standing Committee is not made easier by the limits of the PRC system to enforce constitutional rights and, if so, to what established a special office to give preliminary for reporting judicial decisions, which makes it extent? scrutiny to claims that government regulations difficult to learn about and obtain court judgments. Could ordinary legislation authorize Chinese violate the Constitution and should therefore be Yet, one might wonder why, in view of the judges to invalidate on constitutional grounds invalidated by the Standing Committee. SPC’s 2001 education case interpretation, lower abstract regulations and even laws of the NPC Since then, although the petitioning process courts seem reluctant to base their decisions on itself as well as concrete administrative remains cloaked in obscurity, a series of constitutional rights in concrete cases that do not decisions? complaints has reportedly been filed with the attempt to invalidate legislation or regulations. If judicial review of the constitutionality of Standing Committee against various State If, for example, gender discrimination claims legislation and regulations seemed out of the Council regulations. Literally tens of thousands are not deemed to fall within those that can be question without a constitutional amendment and of Hepatitis B carriers claimed that civil service asserted under the Administrative Litigation Law, if such an amendment was impossible to achieve regulations unlawfully discriminated against they plainly are covered by the Constitution’s in the current political climate, would there be them. requirement of equal rights for men and women,

24 AmCham September 2005 not to mention the Marriage Law and other Although details have varied, at these tribunals political circumstances permitted. legislation. Party investigators are required to present Each also features a constitutional court that So long as courts do not tread upon the evidence, including witnesses, and the accused in the democratic era has been remarkably free exclusive prerogative of the NPC Standing is permitted to challenge the evidence, produce in invalidating legislation, as well as regulations Committee to review the validity of legislation witnesses of his own and even have the assistance and administrative acts inconsistent with and regulations, but stick to the task of settling of a fellow Party member in coping with the fundamental legal norms. Unelected judges disputes about concrete administrative or private evidence and arguing his case. Triers of the case making controversial constitutional decisions of actions—a task that no one believes the NPC are designated by the local DIC and, like real profound political significance in a new and hotly- Standing Committee will ever take on—why PRC judges in sensitive or difficult cases they contested electoral environment would test the should the courts deny Chinese citizens the merely report their findings to the tribunal’s mettle of any system, especially one rooted in benefits of their Constitution, while nevertheless leadership for decision. In some cases the hearing East Asian political-legal culture. consulting lesser sources of law? is “open”, in the sense of allowing certain Party Japan’s Supreme Court, by contrast, has been Will the respond in a creative way members to attend, and the accused has a limited far more cautious in its constitutional decision- to the challenges presented by an increasingly right to appeal an adverse decision. making. Thus far, constitutional judgments of litigious society? These Party tribunals have apparently not Taiwanese and Korean courts have, by and large, Much depends on whether the Party yet been convened at the provincial or central been accepted as legitimate, even by powerful leadership has the wisdom and vision to appreciate level, but their emergence at the grass roots losers. the contribution that able and imaginative judges demonstrates the spread of ideas of fundamental Some Chinese experts acknowledge that, as can make to stabilizing a country that is seething fairness among the country’s elite when it comes the PRC charts the course of its future law reform, with injustice. to dealing with itself. there is much to be learned from the experience I am confident that the quality of the judges Loss of Party membership, even in today’s of both . is improving, as one recent statistic suggests. A more mobile Chinese society, can be devastating. Why this is so is easy to understand, a brief decade ago only 10,000 judges in the country, a These Party tribunals also reflect the Party’s reference to Taiwan will illustrate. mere 6.9% of the total at that time, had received increasing concern for enhancing its legitimacy, Would it be feasible for the PRC to establish an undergraduate education of any kind. Today, punishing corruption and ventilating the an independent constitutional court despite China’s over 90,000 judges have reached that level, some punishment process to reduce the likelihood that uncongenial traditions for it? 51.6% of the current total, and this trend toward it too is corrupted. Taiwan shares those traditions.Yet the recent greater education, increasingly legal education, example of its Council of Grand suggests will continue. The Relevance of Taiwan and that, given political will, a constitutional court South Korea could function successfully in Mainland China. Due Process and the Communist Party Taiwan and South Korea have Can the PRC create a judiciary that is Albeit little known to most Chinese people, much in common regarding politically independent, free of corruption and growing rights consciousness has even invaded development of the rule of law. “local protectionism”, and immune to the the precincts of the Communist Party’s 70 million distortions of “guanxi” (connections)? members. Their current democratic governments both Under the Nationalist Party’s dictatorship, When dealing with the crucial issue of the emerged from decades of authoritarian dictatorship Taiwan’s judiciary and its prosecutors were a imposition of Party sanctions against individual at the same time. Both places are deeply influenced scandal. Yet, during the past fifteen years, starting members, the most severe of which is loss of by China’s Confucian/Buddhist culture and long before the 2000 electoral victory of the membership, the Party Charter has long imperial Chinese bureaucratic traditions, and, like Democratic Progressive Party ousted the recognized certain elements of due process— the PRC, have little in their pre-modern past to Nationalists from the Presidency, Taiwan’s notice to the individual of the adverse action sustain legal concepts and practices such as those judges—and prosecutors too—have undergone proposed and a right to be heard before a decision relating to individualism, government under law, a remarkable transformation. is made. and constitutionalism. How did this happen? How is it possible to In practice, that provision has rarely been Each suffered decades of Japanese create a professional elite, including lawyers, that implemented. Recently, notable steps have been colonialism until 1945, and they learned even has actually begun to take legal ethics seriously, taken to put living flesh on the bare bones. For more about the virtues of a genuine rule of law even while the political process is still awash in the past four years local Party Discipline and from its absence during their respective post-World corruption? PRC leaders may not like the answers, Inspection Commissions (DIC) in at least twenty War II dictatorships. but should pursue them. provinces have reportedly conducted a range of Yet both made rapid social, economic and Would Chinese criminal investigators be able experiments with what has come to be known as educational progress during the post-war era, and, to do their job if their powers to search, arrest a “Party Discipline Tribunal” or “Intra-Party as part of this process, created a legal elite of and detain become subject to review by an Court”, that adopts some basic features of PRC law professors, lawyers, judges, prosecutors and independent court? What would be the impact criminal court . officials familiar with other legal systems and of granting Chinese suspects a right to silence? In one respect the opportunity to cross- international legal standards. This is undoubtedly What effective measures might be taken to enforce examine witnesses—this evolving institution may what enabled each to make a relatively smooth the PRC’s existing, but often ignored, prohibitions do better than most criminal trials. transition to a democratic legal system once against police torture and coerced confessions?

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Should lawyers be allowed to begin defending seem highly desirable for them to take account with the particular problems caused by their clients during the often lengthy criminal of how a similar effort is faring in a legal “hooligans”. investigation stage? Again, Taiwan has a wealth environment much more similar to the PRC’s That legislation has confronted a succession of experience. than that of Europe. of challenges before the Council of Grand Justices, Perhaps most innovative and daring is which is considering yet another constitutional Taiwan’s recent determination to improve fairness China’s long struggle to attain a petition relating to this issue. Before deciding to and accuracy of criminal trials by adapting the civilized system of criminal justice adopt a similar “public order” tribunal to preside Anglo-American adversary system—minus jury is significantly undermined by the over future “laojiao” cases, as has been proposed, trial—to local needs. continuing power of police to avoid the PRC would do well to consult Taiwan’s long This has produced formidable challenges: the criminal process entirely, effort to cope with this problem. How to cross-examine witnesses in open court I urge the Commission to endorse the and deal with other complex evidence problems? continuing support of Congress and the Executive How to change the roles of prosecutor, defense As noted, by consigning people to as much Branch for rule of law-related cooperation with lawyer and to break the mold of the as three or four years in a “reeducation through PRC lawyers, judges, prosecutors, officials and traditional continental European model adopted labor” camp. scholars and also the commencement of our by Chiang Kaishek’s regime three-quarters of a Even on this crucial question, the experience government’s support for research on development century ago? of Taiwan is strikingly relevant. For many years of the rule of law in Taiwan and South Korea, PRC reformers are increasingly aware of the under the Nationalist Party, Taiwan had similar and its relevance to law reform in the PRC. extent to which the continental European criminal administrative punishments for “hooligans”, 7 October Friday procedures on which their system has also been political dissidents and others, until such Ritz-Carlton Hong Kong 8:00am-9:30am based have themselves become more “adversary” punishments were held to be unconstitutional. Where is China’s Legal System Heading? in nature especially in the post-World War II years. At that point the legislature, no longer willing to They now confront the difficult issue of how far punish dissenters but still concerned with Speaker: Jerome Cohen to follow through on the PRC’s own considerable “hooligans”, established a special “Public Order Counsel, Paul, Weiss, Rifkind, Wharton & Garrison, flirtations with the adversary system. Before Tribunal” under ordinary courts, in an attempt New York making their decision on this major issue, it would to deal in a constitutionally acceptable manner see page 40

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