Don't Break the Engagement

Elizabeth Economy

From Foreign Affairs, May/June 2004

Summary:  This election year may tempt both critics of the Bush administration and hard-liners within it to attack U.S. policy on China. That would be a mistake, however, for engaging Beijing has worked well. Economic growth in China has spurred political liberalization, legal reform, opening of the media, and popular activism. The Bush administration -- and those who aspire to replace it -- should not let electoral tactics jeopardize sound policy. With respect to China, that means staying the course.

Elizabeth Economy is C.V. Starr Senior Fellow and Director of Asia Studies at the Council on Foreign Relations and the author of The River Runs Black: The Environmental Challenge to China's Future.

RIGHTS OF PASSAGE

Legal reform has been underway in China since the death of Mao Zedong almost 30 years ago. The country's impressive economic growth, its transition to a market economy, and its integration into the global economy drove the first legal reform: a move toward an accountable regulatory environment, with well-defined laws and well-trained lawyers and judges. Its results have been striking. Since 1978, the number of lawyers in China has skyrocketed from 2,000 to 120,000, and more than 230 law schools are now training 80,000 future lawyers. More than 70 percent of Chinese judges today have received some formal legal training (including, for two judges on China's highest court, at Harvard and Yale); they no longer are ordinary citizens or retired army officials. Specialized subcommittees of the National People's Congress now study laws from abroad and rely on experts to draft complex, nuanced legislation.

In recent years, legal reform has assumed other, urgent purposes: to attack corruption, quiet social unrest, and, in the process, enhance the legitimacy of China's leadership. In a speech to the Politburo last fall, President Hu argued that urgent judicial reform was needed to ensure fairness and justice for Chinese society. There are more lawsuits than ever in China today, and the government loses more of its cases than it did before: in the early 1990s, only about 40 percent of all cases against the government succeeded, whereas now almost 75 percent do. Independent legal clinics have blossomed, specializing in environmental lawsuits, the protection of migrant laborers, and supporting the indigent. In the countryside, "barefoot lawyers" -- Chinese citizens without formal legal training -- are reading up on the law and advising their neighbors on how to protect themselves from predatory officials. As a result, traditionally powerless citizens are now successfully using the legal system for redress. In a recent case, a Beijing court awarded 500 migrant workers $608,000 in back pay from a construction company. After issuing the judgment, the court's president stated proudly, "The court is the weapon to guarantee your legal interests."

China now seems poised to enter a third and far more revolutionary stage of legal reform, which will challenge basic assumptions concerning the scope of individual rights and the relationship between the CCP and the constitution. Hu and Wen recently re-ignited a long-standing debate over whether the CCP is subject to, rather than an ultimate authority beyond, China's constitution and laws. They insist that the party must abide by the rule of law; others fear that it will lose its unique authority if it assumes a status equal to that of the state and the rest of Chinese society under the constitution.

While that debate has raged, Hu and Wen have scored several important successes by advancing people's rights through constitutional reform. In March 2001, the party amended the constitution to enshrine the right of private property and a commitment to "respecting and protecting human rights." Democracy activist Liu Xiaobo said of the new human rights provision, "China will abandon its earlier insistence on defining human rights as the right to subsistence. Without qualifying human rights as being 'with Chinese characteristics,' China is embracing them as a set of universal values." Legislation to improve review of death penalty cases and to overhaul the operation of labor camps is also under consideration.

BUILDING A FOURTH ESTATE

The media have also become critical players in Beijing's anticorruption campaign and its effort to be more transparent. The reach of China's media today is impressive: there are 2,000 daily newspapers, and 900 television stations serve 90 million cable users. For the past several years, the media have helped ensure government accountability by investigating official cover-ups in the SARS (severe acute respiratory syndrome) epidemic, reporting on failed government campaigns to clean up the environment and root out corruption, and doggedly pursuing officials and businesspeople who flout the law and individual rights. In early 2004, the city of Shenzhen even introduced a draft regulation stipulating that journalists have a right of "reasonable distrust" -- that is, to be suspicious of the government -- which officials must respect.

The Internet has been an especially potent catalyst for political discussion. The rise in Internet use has been staggering: in 1999, there were 4 million Internet users in China, and estimates foresaw roughly 33 million users for 2003; in fact, last year there were approximately 79.5 million users, including 20 million new ones. Approximately 64 percent of Internet users in China read news on-line, and 40 percent of young users and 24 percent of adult users regularly visit overseas sites. There are more than 350,000 Web sites now based in China, some of which feature controversial content. The Web site of Aizhi, for example, an organization founded by world-renowned AIDS activist Wan Yanhai, reports discrimination against AIDS patients, and the Web site www.nongyou.org denounces high suicide rates among rural women and high taxes on peasants. In 2004, deputies to people's congresses began to use the Internet for on-line discussions with the public on such topics as traffic, piracy, garbage disposal, and education.