The Worst, Best of Times for Dialogue

     Like the related human rights dialogue, the next legal experts dialogue will convene during trying times for rule of law in China. In many respects, rights defense work is becoming more dangerous, and free expression and the right to a free trial face serious obstacles. In February, Gao Zhisheng, one of China’s most renowned rights lawyers, was “disappeared.” The Open Constitution Initiative, which promoted Chinese legal reform, was declared illegal this summer, its website shut down, and its head, Xu Zhiyong, arrested on tax evasion charges. Scores of rights lawyers have had their licenses revoked. In broader terms, the number of arrests for political crimes is expected to increase again this year, in part due to the riots in Urumqi in July. Public security forces are vigorously policing the Internet and have detained, arrested, or convicted many citizens for online posts and other electronic communications.

     On matters of law, the US and Chinese sides clearly have many points of contention, but historically, Chinese officials have been receptive to inputs from US counterparts in legal exchanges, including those coordinated by NGOs, universities, bar associations, and business councils. After frequent programs on labor law and worker rights, for example, China promulgated the Labor Contract Law and a revised Labor Dispute Mediation and Arbitration Law in 2008. Judging the practical effects of these laws is difficult, but their passage indicates that some Chinese lawmakers are trying to remedy urgent problems. Labor rights are under constant stress in China, and with worker protests on the rise, labor grievances are as likely to play out in China’s streets as in the courts.

     A crucial prerequisite for legal discussions is more transparency in the criminal justice system, particularly regarding case adjudication. To this end, the renewed legal dialogue can encourage Chinese counterparts to increase access to verdicts and trials. Some Chinese provinces have started to publish verdicts online, but most courts do not make their rulings public. And while most trials are supposed to be open to the public, including foreign observers, attending trials remains difficult if not impossible, especially in sensitive cases or those involving “state secrets.” Pre-trial procedures in both countries, like the constitutionally-protected right of a defendant to meet with counsel, collection of evidence, and the process for calling witnesses, are all issues worthy of frank and open discussion.

Other Areas Open for Talks

     As with labor law, the least mature of China’s legal mechanisms may yield the most space for the United States to work with Chinese partners. China’s fledgling juvenile justice system is one on which dialogue is increasingly robust. The rise in juvenile crime in China and the absence of a national system for trying juvenile cases have inspired China to go abroad and learn from Western models. One of the most successful legal exchanges in recent years was the delegation hosted by Dui Hua from China’s SPC to study the US juvenile justice system (see Dialogue Issue 33). A report on the program was prepared for Premier Wen Jiabao and circulated in Chinese legal circles. Following this positive experience, the SPC has invited Dui Hua to organize a return delegation of American experts to study China’s juvenile justice system in 2010.

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