"Rule of Law in Asia"
By Amy McCreedy
Asia Program Associate
The "Rule of Law" is steadily making progress throughout East Asia. Such was the general conclusion of this day-long conference, co-sponsored with the Mansfield Center for Pacific Affairs, which brought together legal experts from the PRC, Taiwan, Hong Kong, Korea, Japan, Vietnam and the United States.
The Rule of Law is an immense subject all too often reduced to a buzzword. The conference participants looked beyond easy answers to grapple with important issues. Is Rule of Law (as it is commonly referred to) a Western concept that is not necessarily desirable for Asia in all respects? How can constitutional "rights on paper" be institutionalized and made enforceable? As a point of departure, the participants used "The Rule of Law: A Lexicon for Policy Makers" by Barry Hager of Hager Associates, which outlines nine core components of the Rule of Law.
Jerome Cohen, senior fellow at the Council on Foreign Relations and the "Godfather" of Asian legal studies, kicked off the discussion with an overview of Western law in Asia. He hailed globalization as a catalyst for reform, since Asian countries "cannot achieve their economic goals without foreign investment" and outside investors demand protection of private property. In general, Cohen's conclusions on the merits of globalization were affirmed by the Asian experts present. Yasuaki Onuma of the University of Tokyo came the closest to disagreeing when he criticized the "excessive legalism" of the United States and maintained that Westernization comes at the price of some desirable aspects of Asian culture.
Most of the speakers were optimistic and upbeat. While admitting that institutional change takes years or even generations to accomplish, they maintained that the 1990s saw significant advancement in the protection of private property and human rights. For example, Chinese and Vietnamese citizens are asserting their legal rights (460,000 lawsuits have been brought against the PRC government since this action became legally possible in 1989), and the constitutional courts in Taiwan and South Korea are functioning robustly. Interestingly, the Asian conference participants were generally more optimistic than their American counterparts in regard to progress, perhaps because they tended to take a longer-term view.
One of the highlights of the day was the panel from mainland China. The Chinese speakers pointed out that the constitution of the PRC contains many human rights, though too often these are not enforced. Xixin Wang of Peking University explained that the Chinese constitution has no teeth because it is "expressional" rather than "institutional." Nonetheless, he expressed the conviction that the PRC will follow its Asian neighbors and that the emerging middle class will push forward the Rule of Law to protect its interests. Quiangguo "George" Fu, a former judge on the Shanghai People's Court, pointed out that while citizens are suing the Chinese government in unprecedented numbers, only 18% of these lawsuits are successful due to government interference. However, he maintained that "Chinese leaders have realized that the market economy is the economy of the Rule of Law."
The keynote address was given by Joseph Onek, Senior Coordinator for Rule of Law at the U.S. Department of State. He criticized Congress for not approving Rule of Law funding for the PRC and delivered an impassioned plea for the United States to increase exchange programs and training of legal personnel in developing countries. Democracy and political rights were seldom mentioned during the conference. The attainment of prosperity and material well-being were emphasized instead. Rule of Law was viewed as a prerequisite to such prosperity.
Barry M. Hager, President, Hager Associates
Jerome A. Cohen, Professor, NYU Law School/Council on Foreign Relations
Truong Trong Nghia, Vice President, Foreign Trade and Investment Development Center, Vietnam
Tsung-fu Chen, Associate Professor of Law, National Taiwan University, Taiwan
Joon-Hyung Hong, Professor, Graduate School of Public Administration, Seoul National University, South Korea
Xixin Wang, Professor, Constitutional and Administrative Law Section, Peking University, Beijing, PRC
George Q. Fu, Managing Partner, Watson & Band Law Offices (Fu & Xu), Shanghai, PRC Albert Chen, Dean, Faculty of Law, The University of Hong Kong
Joseph Onek, Senior Coordinator for the Rule of Law, U.S. Department of State
James Feinerman, James M. Morita Professor of Asian Legal Studies, Georgetown University Law Center
Yasuaki Onuma, Professor of International Law, University of Tokyo, Japan
Sang-Hyun Song, Former Dean and Professor, Seoul National University Law School, South Korea
Eric Bjornlund, Fellow, Woodrow Wilson Center
Amy Young, Director, Democracy Promotion, Bureau of Democracy, Human Rights, and Labor, U.S. Department of State
Erik Jensen, Director of Research, International Program, Stanford Law School and Law Advisor, The Asia Foundation
Richard Messick, Senior Public Policy Specialist, Public Sector Group, The World Bank