Law and Development of Constitutional Democracy in China: Problem or Paradigm


LAW AND DEVELOPMENT OF
CONSTITUTIONAL DEMOCRACY IN
CHINA: PROBLEM OR PARADIGM?

RANDALL PEERENBOOM*

I. INTRODUCTION .......................................................................... 185

II. THE EAST ASIAN PATH TO CONSTITUTIONAL
DEMOCRACY ............................................................................. 189

A. THE MUTUAL REINFORCEMENT OF RULE OF LAW AND

ECONOM IC G ROW TH ................................................................... 191
B. INVESTMENT IN HUMAN CAPITAL AND INSTITUTIONS ................. 197
C. LEGAL REFORMS, ECONOMIC GROWTH AND

D EM OCRATIZATION .................................................................... 201

D. CONSTITUTIONALISM AND RIGHTS .............................................. 204

III. LAW AND DEVELOPMENT IN CHINA TO DATE ............... 209

A. ECONOMIC RIGHTS AND HUMAN DEVELOPMENT ........................ 209
B. INSTITUTIONAL DEVELOPMENT: RULE OF LAW AND GOOD

G OVERNAN CE ............................................................................. 2 11
C. CIVIL AND POLITICAL RIGHTS ..................................................... 212
D . CONSTITUTIONALISM .................................................................. 218
E . A SSESSING C HINA ....................................................................... 227

IV. CONCLUSION: CHINA AND THE EAST ASIAN
MODEL-LESSONS AND LIMITS .......................................... 229

I. INTRODUCTION

China is frequently portrayed as a problem case for the law and
development movement and modernization theories.' For some, the
problem is that China has enjoyed remarkable economic growth in the

Professor of Law, UCLA School of Law; peerenbo@yiwenlaw.com. I would like to thank
Michael Dowdle, James Feinerman, and the participants at the conferences at Syracuse Law School,
Columbia Law School, Cambridge Law School, and The University of Law and Politics in Beijing
for their comments.

This article grew out of an invitation to attend a conference in New York in early spring 2005 on
Legal Evolution Toward a World Rule of Law: Development of Legality and Constitutional
Democracy Worldwide. China was included in a panel on problematic cases, as often happens at
such conferences, along with Africa, the Middle East, and Latin America-which is to say, along
with most of the world.



COLUMBIA JOURNAL OF ASIAN LA W

last several decades, apparently without the benefit of "the rule of law,"
thus challenging the prevailing view that a legal system that enforces
property rights is necessary, if not sufficient for sustained economic
growth.

For others, the problem is political in nature. China has resisted
the third wave of democratization, and remains an officially socialist
state, even if a unique twenty-first century version of a socialist state that
has endorsed a market economy and rule of law. Some fear that "since
China is an increasingly important and influential country in world
affairs, China's continuous anti-democracy diplomacy would have
significant impact on the diffusion of . . . democracy throughout the
world." 2 Indeed, some believe that Russia's recent tilt toward
authoritarianism reflects the influence of the success of the Chinese
model of markets without democracy. 3

Setting aside the issue of democracy, for others, the problem is
human rights. Not only does China have a poor record on civil and
political rights, but critics also fear that, unlike Japan, which did not
attempt to challenge the Western powers during its economically
powerful years, China is likely to take advantage of its growing economic
and geopolitical influence to defend and advocate rights policies and a
normative vision of the world at odds with current rights policies based
on secular liberalism. Indeed, there are already signs of such intentions,
most notably in the heavily politicized debates over "Asian values" and
China's attempts to influence the policies and restructuring of the UN's
Human Rights Commission. As a result, critics accuse China of adopting
a strategy to divide and conquer by slicing up the concept of universality
"little by little, region by region, to the point where there are few teeth left
in the UN human rights monitoring and implementation mechanisms. ' '

For others, the problem is that China is an outlaw regime that
undermines geopolitical stability through selling ballistic missiles to
rogue states, contributing to the proliferation of weapons of mass
destruction, and threatening U.S. hegemony and military superiority.
This view assumes that authoritarian regimes are a greater threat to world
peace than democracies. It is also based on the historical observation that
the rise of a new power has generally resulted in conflict and geopolitical
instability. Accordingly, the U.S. and its allies must prepare now for the

2 WHAT IF CHINA DOESN'T DEMOCRATIZE?: IMPLICATIONS FOR WAR AND PEACE 3, 5 (Edward

Friedman & Barret L. McCormick eds., 2000).
3 Michael S. Benstam & Alvin Rabushka, Beijing Consensus for Russia?, Hoover Institution Public
Policy Inquiry, The Russian Economy, at http://www.russianeconomy.org/comments/060204.html
SJune 2, 2004).
Samuel Kim, Human Rights in China 's International Relations, in WHAT IF CHINA DOESN'T

DEMOCRATIZE?: IMPLICATIONS FOR WAR AND PEACE, supra note 2, at 131, 143.

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coming conflict with China, with debates as to whether the best way to do
that is by trying to contain China or by engaging China in the hopes that a
more interdependent and prosperous China will eventually join the fold of
peace-loving liberal democracies.

Is China a problem case? I think not, or at least it is too early to
tell. China is now following the path of other East Asian countries that
have achieved sustained economic growth, established the rule of law,
and developed constitutional or rights-based democracies, albeit not
necessarily liberal rights-based democracies. This appears to be the most
successful model for relatively large countries in the contemporary era to
achieve high levels of economic growth, implement rule of law, and
eventually democratize and protect the full range of human rights through
some form of constitutionalism.

At this stage of development, China is meeting or exceeding
expectations on most measures. The legal system has played a greater
role in economic growth than often suggested, and is likely to play an
even greater role in the future, which is consistent with the experiences of
other countries in Asia and elsewhere.5

China has made remarkable progress in a short time in improving
its legal system, having essentially begun from scratch in 1978. As of
2002, China's legal system ranked in the 51 st percentile on the World
Bank's Rule of Law Index, having risen from the 3 2nd percentile in 1996.6

Moreover, notwithstanding the repeated attempts by the United
States and its allies to censure China for human rights violations and the
steady stream of reports from human rights groups claiming deteriorating
rights performance, Chinese citizens enjoy more freedoms, including civil
and political freedoms, than ever before. In fact, with the exception of
civil and political rights, China outperforms the average country in its
income class on most major indicators of human rights and wellbeing.7

5 See RANDALL PEERENBOOM, CHINA'S LONG MARCH TOWARD RULE OF LAW 450-512 (2002)
[hereinafter CHINA'S LONG MARCH].

For a more extensive treatment of legal reforms in China, see id. The index is part of the World
Bank's Good Governance Indicators. Daniel Kaufnann et al., Governance Matters 111: Governance
Indicators for 1996-2002 (June 30, 2003), available at http://www.worldbank.org/wbi/govemance/
pdf/govmatters3.pdf. According to the authors, the Rule of Law Index measures the extent to which
people have confidence in and abide by the rules of society, how fair and predictable the rules are,
and how well property rights are protected. The indicators include perceptions of incidence of
crime, the effectiveness and predictability of the judiciary, and the enforceability of contracts.
Interestingly, the authors "cautiously conclude" that there is no evidence of "any significant
improvement in governance worldwide, and if anything the evidence is suggestive of a
deterioration, at the very least in key dimensions such as rule of law, control of corruption, political
stability, and government effectiveness." Id. at 32.
7 See infra; see also Randall Peerenboom, Assessing Human Rights in China: Why the Double
Standard?, 38 CORNELL INT'L L.J. 101 (2005) [hereinafter Assessing Human Rights in China]
(arguing that China is subject to a double standard on rights issues in part because of the privileging
of civil and political rights and the bias against non-democratic regimes).

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To be sure, while China has acknowledged the importance and
legitimacy of human rights, it has also challenged the pretense of a
universal consensus on human rights issues, or at least the consensus
among much of the cosmopolitan elite in economically advanced Western
liberal democracies. Given the deeply entrenched view that even
universal rights are contingent on local circumstances, China is unlikely
to attempt to impose its own particular solutions to complex issues on
other countries. Nevertheless, it may very well seek a shift in normative
orientation toward a more flexible, contextualized approach, with greater
toleration for non-liberal, communitarian or collectivist approaches to
rights issues. However, where critics see such policies as a dangerous
threat to the legitimacy of human rights, supporters see China's position
as a necessary corrective to the hegemony of liberalism and the neo-
imperialistic tendencies of the Western-centric human rights movement.

Of course, China's attempt to modernize will take decades to
reach at least a relative state of equilibrium. Even then, the process of
change will continue, if perhaps in less dramatic fashion, just as it does in
the West. Moreover, capitalism, rule of law, democracy, and human
rights are sufficiently contested in theory and varied in practice that-
much to the chagrin of those who would choose to impose a highly
idiosyncratic version of liberal democracy on China-the final outcome
in China cannot, at this point, be accurately predicted. As China
negotiates modernity and, indeed, post-modernity, it may very well give
rise to one or more novel incarnations of capitalism, rule of law,
democracy, or human rights.8 On the other hand, there is enough minimal
determinate-dare I say universal-content to each of these four aspects
of modernity to provide a teleological orientation to the process that is
likely to survive into the coming decades, barring extraordinary
catastrophes that radically change the nature of contemporary society.

If China is not a problem case, is it a possible model or paradigm
for other developing countries, as some have suggested? 9 There are

8 See generally CHINA'S LONG MARCH, supra note 5 (discussing competing conceptions of rule of
law).
9 See, e.g., FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND
ABROAD (2003); JOSHUA COOPER RAMO, THE BEIJING CONSENSUS (2004). The Beijing
Consensus ("BC") has been used to refer to a pragmatic approach to reforms, to rejection of a
limited role for the state and greater emphasis on equitable growth, to rejection of the Washington
Consensus, and to market reforms without democracy. Joshua Cooper Ramo, who coined the term
"Beijing Consensus," described China as

[M]arking a path for other nations around the world who are trying to figure
out not simply how to develop their countries, but also how to fit into the
international order in a way that allows them to be truly independent, to
protect their way of life and political choices in a world with a single
massively powerful centre of gravity. Id. at 4.

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aspects of China's experience that may be useful to other countries.
However, China's developmental path is not a detailed blueprint for other
developing states to slavishly follow for a variety of practical and
normative reasons spelled out below.

II. THE EAST ASIAN PATH TO CONSTITUTIONAL
DEMOCRACY

The "East Asian path"-a notion which admittedly serves a
purpose useful, if at all, only at a high level of generality and reveals
considerable diversity when subject to closer scrutiny-involves the
sequencing of economic growth, legal reforms, democratization, and
constitutionalism, with different rights taken seriously at different times
in the process. In particular, the model involves:

(i) an emphasis on economic growth rather than civil and political
rights during the initial stages of development, with a period of
rapid economic growth occurring under authoritarian regimes;

(ii) a pragmatic approach to reforms, with governments following
some aspects of the Washington Consensus and rejecting or
modifying others, in particular, with governments: adopting most
of the basic macroeconomic principles of the Washington
Consensus for the domestic economy; rejecting or modifying the
neoliberal aspects that would greatly reduce the role of the state
through rapid privatization and deregulation, with the state also

In his view:

[The BC] replaces the discredited Washington Consensus, an economic
theory made famous in the 1990s for its prescriptive, Washington-knows-
best approach to telling other nations how to run themselves. The
Washington Consensus was a hallmark of end-of-history arrogance; it left a
trail of destroyed economies and bad feelings around the globe. China's
new development approach is driven by a desire to have equitable, peaceful
high-quality growth. Critically speaking, it turns traditional ideas like
privatisation and free trade on their heads. It is flexible enough that it is
barely classifiable as a doctrine. It does not believe in uniform solutions for
every situation. It is defined by a ruthless willingness to innovate and
experiment, by a lively defense of national borders and interests, and by the
increasingly thoughtful accumulation of tools of asymmetric power
projection. It is pragmatic and ideological at the same time, a reflection of
an ancient Chinese philosophical outlook that makes little distinction
between theory and practice. Id.

Ramo summarizes the BC in three theorems: reliance on cutting edge technology and innovation to
keep ahead of the curve; sustainable development with equity rather than just higher GDP levels;
and self-determination and peaceful co-existence to prevent powerful international actors from
unduly influencing China's development choices. Id. at 11-12. While economic policies remain
central, the BC as articulated by Ramo encompasses a broad range of political, social, and
international relations issues.

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more active in reducing poverty and ensuring minimal material
standards to compete in a more competitive global economy;10
and modifying the prescribed relationship between the domestic
and global economy by gradually exposing the domestic economy
to international competition while offering some protection to key
sectors and support to infant industries;

(iii) government investment in human capital and government
institutions as the economy grows and wealth is generated,
including reforms to establish a legal system that meets the basic
Fullerian requirements of a procedural or thin rule of law," and,
as the legal system becomes more efficient, professionalized, and
autonomous, with a greater role for law in the economy and
society in general;

(iv) greater protection of rights after democratization, including rights
that involve sensitive political issues, although with ongoing
rights abuses in some cases and with rights frequently interpreted
in a communitarian or collectivist rather than liberal fashion;

(v) the beginning of nascent but limited constitutionalism during the
authoritarian period, including the development of constitutional
norms and the strengthening of institutions; the emergence of
social organizations and the development of "civil society", albeit
often with a different nature and political orientation than in
Western liberal democracies and with organizations with limited
political agendas; citizens enjoying economic liberties, rising
living standards, some civil and political rights with limitations
especially on rights that involve political issues and affect the
control of the regime; limited judicial independence, with the
protection of a full range of human rights and, in particular, civil
and political rights suffering accordingly;

(vi) greater protection of the a range of rights after democratization,
including rights that involve sensitive political issues, although
with ongoing rights abuses in some cases and with rights
frequently given a communitarian or collectivist rather than
liberal interpretation.

10 China has learned this lesson the hard way. While China has done reasonably well in addressing

poverty., the focus on aggregate economic growth has led to rising inequality. In addition, the
relatively low amount of public spending on education and health, combined with a turn toward
market forces in the health sector, have increased social tensions. In recent years, the government
has begun to increase public spending on education, health, and welfare services.
1' On the differences between thin (procedural) and thick (substantive) theories of rule of law, see
CHINA'S LONG MARCH, supra note 5, at 65-71, and the cites therein.

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This very roughly describes the arc of several Asian states, including
countries at various economic levels, stages of legal development, and
with political regimes ranging from democracies to semi-democracies to
socialist single party states. South Korea and Taiwan have high levels of
wealth, rule of law compliant legal systems, democratic government, and
constitutionalism. Similarly, Japan exhibits these traits, although it is a
special case given its early economic rise and the post-War influence of
the United States on legal and political institutions. Hong Kong,
Singapore, and Malaysia are also wealthy, with legal systems that fare
well in terms of rule of law, but are either not democratic (Hong Kong) or
are non-liberal democracies (Singapore and Malaysia). Thailand, less
wealthy than the others, has democratized, but has a comparatively
weaker legal system and has, under Prime Minister Thaksin, adopted
policies that emphasize growth and social order rather than civil and
political liberties. China and Vietnam are at an earlier stage than the
previously cited examples. They are lower-middle income countries and
have legal systems that outperform the average in their income class, but
are weaker than the aforementioned examples. They also remain single
party socialist states, with varying degrees and areas of political
openness.

12

There are also examples of less successful paths in Asia (and
elsewhere) measured in terms of wealth, rule of law, human rights, and
other indicators of wellbeing. Some involve countries that democratized
at lower levels of wealth. Others involve authoritarian systems that failed
to invest in human capital and institutions. They tend to have the weakest
legal systems and to be mired in poverty, with all of the human suffering
that such plights entail.

A. The Mutual Reinforcement of Rule of Law and Economic
Growth

Five East Asian countries or jurisdictions rank in the top quartile
on the World Bank's Rule of Law Index: Singapore, Japan, Hong Kong,
Taiwan, and South Korea. This is a remarkable achievement given the
well-documented failures of the earlier law and development movement
in the mid-1960s and 1970s, and of its more recent reincarnation under
the banner of rule of law and good governance in the past twenty years.
Despite large sums of money and the best efforts of international and

12 See generally Randall Peerenboom, Varieties of Rule of Law, and the other chapters on each of

the respective Asian countries, in ASIAN DISCOURSES OF RULE OF LAW: THEORIES AND
IMPLEMENTATION OF RULE OF LAW IN TWELVE ASIAN COUNTRIES, FRANCE AND THE U.S.A.
(Randall Peerenboom ed., 2004) [hereinafter ASIAN DISCOURSES OF RULE OF LAW].

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domestic actors, the results have, on the whole, been rather poor.13 Apart
from North American and Western European countries, Australia, and
Israel, the only other countries in the top quartile are Chile and French
Guiana from Latin America, Slovenia as the lone (non)representative
from Eastern Europe, and a handful of small island states and oil-rich
Arab countries.

14

The seemingly random countries in this odd grouping have one
thing in common: wealth. All of the countries in the top quartile of the
World Bank's Rule of Law Index, including the East Asian countries, are
high or upper-middle income countries. This is consistent with the
general empirical evidence that rule of law and economic development
are closely related (r=.82, p < .01), 15 and tend to be mutually
reinforcing. 16 Indeed, notwithstanding theoretical arguments for and
against the claim that rule of law contributes to economic development,
the empirical evidence is surprisingly consistent and supportive of the
claim that implementation of rule of law is necessary though by no means
sufficient for sustained economic development. 17

Asia is often considered an exception to the general rule requiring
rule of law for sustained economic growth. 18 However, the role of law in

13 See, e.g., THOMAS CAROTHERS, PROMOTING THE RULE OF LAW ABROAD - THE PROBLEM OF
KNOWLEDGE (Carnegie Endowment for Int'l Peace, Rule of Law Series, Carnegie Paper No. 34,
2003) (discussing problems in conception, operation, and evaluation of efforts to export rule of law
and claiming that many of the lessons from prior experiences with law and development are
superficial and often not acted on); Rosa Ehrenreich Brooks, The New Imperialism: Violence,
Norms and the "Rule of Law", 101 MICH. L. REv. 2275, 2280 (2003) ("Despite billions of aid
dollars, programs to promote the rule of law have been disappointing."); Tim Lindsey, Preface to
LAW REFORMS IN DEVELOPING AND TRANSITIONAL STATES (Tim Lindsey ed., forthcoming 2006)
(claiming consensus that many if not most legal reform projects in developing countries have
failed); YVES DEZALAY & BRYANT G. GARTH, THE INTERNATIONALIZATION OF PALACE WARS:
LAWYERS, ECONOMISTS, AND THE CONTEST TO TRANSFORM LATIN AMERICAN STATES 246 (2002)
(claiming that most of legal transplants either fail or are largely unsuccessful, although allowing that
optimists might view the reforms as half-successful).

These include Antigua and Barbuda, Barbados, the Bahamas, Bermuda, the Cayman Islands,
Malta, Martinique, Mauritius, Puerto Rico, and Samoa, in addition to Oman, Qatar, Bahrain,
Kuwait, and the United Arab Emirates. Several of the island states rely heavily on tourism and the
provision of financial services to companies looking for tax havens for economic development.
Most have populations between 50,000 and 500,000.
15 See Randall Peerenboom, Show Me the Money: The Dominance of Wealth in Determining Rights
Performance in Asia, 15 DUKE J. COMP. & INT'L L. 75 (2005) [hereinafter Show Me the Money].
16 Alberto Chong & Cesar Calder6n, Causality and Feedback Between Institutional Measures and
Economic Growth, 12 ECON. & POL. 69, 69-81 (2000) (using time series data, the authors find that
the causal relationship between institutions and economic growth runs in both directions, although
the impact of greater growth on institutional development is stronger than the impact of institutions
on growth); Roberto Rigobon & Dani Rodrik, Rule of Law, Democracy, Openness, and Income:
Estimating the Interrelationships (Nat'l Bureau of Econ. Research, Working Paper No. W10750.
2004), available at http://www.nber.org/papers/W10750.
17 I summarize the main theoretical arguments for the relationship between rule of law and
economic development as well as the critiques elsewhere. See CHINA'S LONG MARCH, supra note
5 at 451-58.

See Frank Upham, Mythmaking in the Rule of Law Orthodoxy (Carnegie Endowment for Int'l
Peace, Working Paper No. 30, 2002); John K.M. Ohnesorge, The Rule of Law, Economic

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economic development in Asia is frequently underestimated because of
the tendency to elide rule of law with democracy and a liberal version of
rights that emphasizes civil and political rights.' 9 Although the political
regimes may not have been democratic and the legal systems may not
have provided much protection for civil and political rights, the Asian
countries that experienced economic growth generally have scored high
with respect to the protection of economic interests and the facilitation of
economic transactions. A survey of economic freedoms in 102 countries
between 1993 and 1995 found that seven of the top twenty countries were
in Asia.20 Economic freedoms include protection of the value of money,
free exchange of property, a fair judiciary, few trade restrictions, labor
market freedoms, and freedom from economic coercion by political
opponents. Six states-Japan, South Korea, Taiwan, Hong Kong,
Singapore, and China-experienced sustained growth of over 5% for the
period from 1965 to 1995.21 The legal systems of these countries, with
the possible exception of China, measure favorably in terms of economic
freedoms and rule of law.

However, even in China, the legal system has improved
significantly in the last twenty five years, particularly in the commercial
area.22 In contrast, the legal systems of most of the low growth countries
are among the weakest in the region. The following table presents a
percentile ranking of Asian legal systems based on the World Bank's
Rule of Law Index for the years 1996 and 2002.23 Countries with better
legal systems tend to have higher growth and more wealth, and vice
versa. Indeed, the relationship between GDP and rule of law is stronger
in the Asian region (r-.91) than for countries overall (r=.82), as indicated
in Table 3 below.

Development and the Developmental States of Northeast Asia, in LAW AND DEVELOPMENT IN EAST
AND SOUTHEAST ASIA 91 (Chistoph Actons ed., 2003); Donald C. Clarke, Economic Development
and the Rights Hypothesis: The China Problem, 51 AM. J. COMP. L. 89 (2003).
19 For the argument that law played a greater role than normally suggested, see KATHARINA PISTOR
& PHILIP A. WELLONS, THE ROLE OF LAW AND LEGAL INSTITUTIONS IN ASIAN ECONOMIC
DEVELOPMENT 1960-1995 (1999); MARK J. RAMSEYER & MINORU NAKAZATO, JAPANESE LAW:
AN ECONOMIC APPROACH (1999); CHINA'S LONG MARCH, supra note 5, at 450-512.20 Henry S. Rowen, The Political and Social Foundations of the Rise of East Asia, in BEHIND EAST
ASIAN GROWTH: THE POLITICAL AND SOCIAL FOUNDATIONS OF PROSPERITY 1, 6-7 (Henry S.
Rowen ed., 1998).
21 See id. Thailand, Malaysia, and Indonesia grew more slowly, at around 3.5% per year. Seven
countries, including North Korea, Mongolia, Vietnam, Cambodia, Laos, Philippines, and Myanmar
averaged less than 2% growth. Id.
22 For a more thorough discussion of the role of the legal system in China's economic development,
see CHINA'S LONG MARCH, supra note 5, at 462-98.
23 See Kaufmann et al., supra note 6.

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Table 1: World Bank Rule of Law Rankings

Country 2002 1996
Singapore 93.9 99.4
Japan 88.7 88.0
Hong Kong 86.6 90.4
Taiwan 80.9 84.3
South Korea 77.8 81.9
Malaysia 69.6 82.5
Mongolia 64.9 70.5
Thailand 62.9 71.1
China 51.5 37.3
Vietnam 44.8 34.9
Philippines 38.1 54.8
Indonesia 23.1 39.8
Cambodia 20.1 16.9
North Korea 14.7 13.9
Laos 12.9 4.8
Myanmar 2.1 5.4

Despite such consistent and seemingly overwhelming evidence,
there are still good reasons to be cautious in reaching broad conclusions
about the relationship between rule of law and economic growth.
Defining and measuring rule of law remains an issue. 24 Several of the
main empirical studies relied on subjective measures from three sources:
the ICRG and BERI surveys, and the World Bank's Rule of Law Index.

The relationship between rule of law and economic growth also
appears non-linear.25 For instance, rule of law may not be significant
where a country is very poor and the economy is largely rural-based. A
formal legal system that meets the standards of rule of law is costly to
establish and operate. In some cases, norms of generalized morality,
social trust, self-enforcing market mechanisms, and informal substitutes
for formal law may provide the necessary predictability and certainty
required by economic actors at a fraction of the cost of a developed and
formal legal apparatus.

Formal and informal law, public ordering, and private ordering
are complementary in many ways. Family businesses, networks of
personal relationships, and private orderings exist in all legal systems,
while cultural, economic, political, and economic contexts may vary
between countries, leading to differences in the degree of importance or

24 For a variety of criticisms of current measures of rule of law, including that many of the measures
are too abstract to provide specific guidance to policymakers, see Kevin E. Davis, "hat Can the
Rule of Law Variable Tell Us About Rule of Law Reforms, 26 MICH. J. INT'L L. 141 (2004).
25 ROBERT J. BARRO, DETERMINANTS OF ECONOMIC GROWTH: A CROSS-COUNTRY EMPIRICAL
STUDY 28 (1997).

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variations in particular practices. 26  As no extra-legal mechanism is a
perfect substitute for a developed legal system, each works to support and
overcome the weaknesses of the others. In general, however,
relationships and social networks, clientelism, corporatism, and informal
mechanisms for resolving disputes, raising capital, and securing contracts
are at best imperfect substitutes that themselves often depend on formal
legal institutions that meet the standards of a thin rule of law. Once a
country reaches higher levels of economic development, the costs of a
formal legal system are easier to bear. It is no accident that richer
countries have better legal systems.

Rule of law is an ideal which admits of degrees. Obviously the
legal systems in the prosperous Asian countries were not always so well
developed. As critics note, all legal systems in Asia have deviated to
some degree from the rule of law ideal. The various legal systems have
been slow and inefficient, in some cases corrupt, and have frequently set
up a variety of barriers to civil litigation.27 In development to date,
administrative officials were often allowed considerable discretion,
particularly in Japan where administrative guidance played a crucial role
in state development. To be sure, the amount of discretion compatible
with rule of law is a hotly contested issue.28 Clearly, legal systems
everywhere allow for administrative discretion and employ a variety of
legal, social, institutional, and political means for restraining and
checking the discretion of bureaucrats. Thick conceptions of rule of law,

26 See Randall Peerenboom, Social Networks, Rule of Law and Economic Growth in China: The

Elusive Pursuit of the Right Combination of Public and Private Ordering, 31 GLOBAL ECON. REV.
1 (2002). Critics who challenge the relationship between rule of law and economic development
often note that in some cases courts have played a minor role in enforcing contracts or resolving
disputes, and emphasize that other institutions may provide substitutes for law. While true, such
substitutes operate against a background of law, and often cannot function without the possibility of
ultimately turning to the courts should other means for resolving the dispute fail. Furthermore,
dispute resolution is only one of the economic functions of a legal system. The legal system also
performs an enabling function by creating the basic infrastructure for transactions, including
markets, security exchanges, mortgage systems, accounting practices, and so on. In any event,
individual country studies (much less reliance on individual cases or even studies of a particular
industry or sector) cannot disprove the general correlations found in larger empirical studies. China,
for instance, clearly has advantages that other countries may not have, including potentially large
markets and a wealthy and entrepreneurial force of overseas Chinese to draw on. But even
assuming relatively high growth rates in some countries with weak legal systems, growth rates
might have been higher with a better legal system. Finally, a legal system that is compliant with
rule of law serves many laudable functions other than promoting economic growth, including
limiting arbitrary acts of government and promoting fair (if not always just) outcomes.
27 See, e.g., Ohnesorge, supra note 18; see also Upham, supra note 18; Clarke, supra note 18.
28 See CHINA'S LONG MARCH, supra note 5, at 410-14 (arguing that in this period of transition

during which the legislatures and courts are weak and laws often out of date or poorly drafted, there
are good reasons for allowing administrative actors considerable discretion, although also arguing
for the need to strengthen mechanisms for reviewing administrative decisions and holding state
actors accountable).

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which incorporate different elements of political morality, 29 will differ
with respect to issues such as administrative discretion and administrative
law more generally.3 °

In any event, the legal systems in Japan, Taiwan, South Korea,
Hong Kong, Singapore, and now China during periods of growth were
still stronger and more functional than other legal systems in the region.
Critics often speak of the "lack" or "absence" of rule of law during
periods of high growth, as if rule of law were a discrete variable, either
present in perfect form or absent altogether. This suggests that the legal
systems were wholly dysfunctional, imposing no limits whatsoever on
administrative discretion or state actors and providing no relief for private
parties seeking to settle disputes. But surely the legal systems did not just
suddenly appear in the top quartile of countries on the World Bank's Rule
of Law Index. Indeed, most critics allow that the legal systems played
some role in their respective economies, and acknowledge that practices
such as administrative guidance existed in regulatory environments that
included legal limits as well as political, institutional, and economic
constraints. Moreover, the role of legal systems has naturally changed,
and continues to change, over time. As the legal systems have become
stronger and more professionalized, they have played greater roles. In
Japan, for example, poor economic performance and the Asian financial
crisis have led to the restructuring of the bureaucracy and the curtailment
of administrative guidance, which is now subject to tighter legal
restrictions and judicial review. Globalization and domestic pressures
have also led to proposals to overhaul the legal profession and legal
education (a hot issue in South Korea as well).

Perhaps most worrisome for policymakers, implementing rule of
law and achieving economic growth are complicated tasks. Even those at
the center of the new law and development movement acknowledge the
persistent difficulty in operationalizing the relation between law and
development and the inability to specify with any reasonable degree of
certainty precisely what is required at what stage for economic
development. The problem, in a nutshell, is that rule of law is consistent
with considerable institutional variation. The general principles of rule of
law are too abstract to provide determinate advice on issues such as what
the proper standing requirements should be for civil litigation, how many
lawyers a society can tolerate, and whether they should be allowed to

29 Such elements include different varieties of capitalism with corresponding conceptions of the

proper role of the state, such as the development state as opposed to the minimalist libertarian state,
the limited liberal state, or the most expansive social welfare or progressive state.
30 see CHINA'S LONG MARCH, supra note 5, at 55 (discussing competing thick conceptions of rule
of law); see also id. at 394 (discussing administrative law).

[19:1



CONSTITUTIONAL DEMOCRACY IN CHINA

charge contingency fees, or whether courts should adopt a purposive or
positivist form of interpretation.31

To complicate matters further, the rule of law agenda has
continually been expanded. During the 1990s, in addition to the
procedural and institutional features of a thin rule of law, the new law and
development movement, spearheaded by international financial
institutions ("IFIs"), incorporated under the banner of rule of law the
substantive neo-liberal principles of the Washington Consensus. Faced
with dismal results in many countries, including the financial crisis in
Asia and a notable negative impact on social services and the most
vulnerable members of society in Latin American countries and
elsewhere, IFIs and human rights activists joined forces to expand the
program to include a broader range of concerns including democracy,
human rights, and the particular norms and institutions of liberal
democracies.

The result has been greater conceptual confusion, with rule of law
becoming a slogan to advance whatever substantive agenda or wish-list of
rights, economic policies, and government practices the speaker chooses.
Countries, particularly politically weak and financially dependent states,
are in danger of losing control over the reform process and their own
political agenda. While there are technical aspects to legal reform, the
reform process is inherently political, with many discrete decisions to be
made, often among second-best alternatives. Few if any reforms are
Pareto improvements. Rather, there are winners and losers, both among
individual citizens and state organs of power. Yet rather than allowing
domestic political systems to weigh the costs and benefits, international
actors are attempting to influence, if not outright dictate outcomes. Not
surprisingly, in Asia and elsewhere, countries at low levels of wealth that
have taken on the broader agenda and attempted to democratize and
implement a full range of social and economic as well as civil and
political rights have often experienced disappointing results.32

B. Investment in Human Capital and Institutions

Performance on human rights standards, including measures of
civil and political rights, and other indicia of human wellbeing, is highly

31 For variety within Asia in institutions and conceptions of rule of law, see generally ASIAN
DISCOURSES OF RULE OF LAW, supra note 12.
32 See generally HUMAN RIGHTS IN ASIA: A COMPARATIVE LEGAL STUDY OF TWELVE ASIAN

JURISDICTIONS, FRANCE AND THE U.S. (Randall Peerenboom et al. eds., forthcoming 2006)
[hereinafter HUMAN RIGHTS IN ASIA]. See also Robert Pinkney, DEMOCRACY IN THE THIRD
WORLD 6, 65 (2d ed. 2003) (noting that today very few of the third wave democracies have
managed to consolidate democracy).

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COLUMBIA JOURNAL OF ASIAN LA W

correlated with wealth.33 Indeed, as Table 2 graphically depicts and Table
3 demonstrates, wealth is highly correlated with social and economic
rights (r=.92), 34 women's rights as measured by the Gender
Developmental Index (r=.93), 35 good governance indicators such as
government effectiveness (r=.77), 36 rule of law (r=.82), control of
corruption (r=.76), 37 civil and political rights (r=.62), 38 and even physical
integrity rights, though to a lower degree (r= -.40). As countries become
wealthier, they generally protect rights better as a whole.

33 William H. Meyer, Human Rights and MNCs: Theory Versus Quantitative Analysis, 18 HUM.
RTS. Q. 368 (1996) (GNP biggest contributor to civil, political, social, and economic rights); GEERT
HOFSTEDE, CULTURE'S CONSEQUENCES: COMPARING VALUES, BEHAVIORS, INSTITUTIONS AND
ORGANIZATIONS ACROSS NATIONS 248, 251 (2d ed. 2001) (wealth was the main factor affecting
rights compliance, although individualism mattered in wealthier countries); Neil J. Mitchell &
James M. McCormick, Economic and Political Explanations of Human Rights Violations, 40
WORLD POL. 476, 497 (1988) (higher levels of economic wellbeing associated with better physical
integrity rights records); Clair Apodaca, Measuring Women's Economic and Social Rights
Achievement, 20 HUM. RTS. Q. 139 (1998) (higher GDP associated with better performance on
women's rights).
34 The table is based on UNDP rankings for social and economic rights in 2002 as measured by the
Human Development Index ("HDI"). The HDI measures the average achievement in a country in
three basic dimensions: a long and healthy life based on life expectancy at birth; education and
knowledge measured by adult literacy and combined primary, secondary, and tertiary enrollments;
and a decent standard of living as measured by GDP per capita (US$PPP). Some scholars have
complained about the quality of the UN data. However, other studies using an alternative measure
of physical quality of life have also found a very strong correlation between wealth and such
indicators of wellbeing, including subsistence rights, life expectancy, infant mortality, and literacy.
See Wesley Milner et al., Providing Subsistence Rights at the End of the Twentieth Century: Do
States Make a Difference, in UNDERSTANDING HUMAN RIGHTS VIOLATIONS 110, 119 (Sabine
Carey & Steven Poe eds., 2004) (using the Physical Quality of Life Index developed by Morris, and
noting that strong relationship between wealth and better physical quality of life found in their study
is consistent with earlier results of other scholars).
35 The UNDP's Gender Development Index (GDI) index is also highly correlated with the HDI
index (r=.999), suggesting that they capture largely the same phenomena. Accordingly, I have not
produced a separate scatterplot for GDI as the graph is virtually identical to the HDI graph.

'Government effectiveness" measures the provision of public services, the quality of the
bureaucracy, the competence and independence of civil servants, and the credibility of the
overnment's policy commitments. Kaufmann et al., supra note 6.
"Control of corruption" measures perceptions of corruption, the effects of corruption on business,

and "grand corruption" in the political arena. Id.
38 Voice and accountability incorporates a number of indicators measuring various aspects of the
political process, civil liberties, and political rights, including the right to participate in the selection
of government and the independence of the media. See id.

[19:1



2005] CONSTITUTIONAL DEMOCRACY IN CHINA

Table 2: Wealth Effect (GDP) on Rights Performance

Good Government Practices

GDP Per Capita (Log 10)

Voice And Accountability

103 10W

GDP per Capita (Log 10)

Human Development Index

10
3  

10'

GDP per Capita (Log 10)

Physical Integrity

10' 10'

GDP per Capita (Log 10)

In general, Asian countries, especially East Asian countries, tend
to do poorly on civil and political rights in relation to others in their
income group. Moreover, even the most democratic regimes in the region
score somewhat lower than the more liberal United States and France. 39

However, Asian countries tend to do much better, both relative to civil
and political rights and also to other countries in their income group, on
economic rights and other quality of life indicators such as education,
infant mortality, life expectancy, law and order, and social stability.4 °

East Asian governments also tend to outperform other countries in their
41income group on good governance measures.

39 See Show Me the Money, supra note 15, Table 5.1, at 136, Figures 2.1, at 135, Figures 4.1, at 147,
and the discussion thereof.
40 Id.
41 id.

5 * 0,

4m 00 *0 as.......



COLUMBIA JOURNAL OF ASIAN LAW

In short, successful Asian states including Singapore, South
Korea, Japan, Taiwan, and now Vietnam and China have implemented
reforms, including institution-building measures and investment in
education and human resources, which have benefited the broader
populace. As Table 3 shows, the relationship between wealth and human
rights performance in Asia and the Middle East is consistently strong
except with respect to civil and political rights, suggesting that there is a
culturally based antipathy to liberal values that explains the variance in
those regions.

In contrast, the relationship between wealth and all types of rights
is consistently weaker in Latin America and Africa, suggesting that the
culprit is corrupt and dysfunctional governments that serve the rich, if
anyone, at the expense of the general populace.42 Reform efforts have
largely been undermined by patronage systems in which state leaders
divert state assets into the hands of a few and elites block reform efforts
aimed at benefiting the majority of citizens.43

42 See Thomas Carothers, The End of the Transition Paradigm, 13(1) J. DEMOCRACY 5 (2002)
(distinguishing between two types of dysfunctional states, one characterized as feckless pluralism
and the other as dominant-power, with the former more common in Latin America and the latter
more common in Africa, and examples of both in the former Soviet republics).
43 On the disappointing results in Latin America, see generally Proceedings of the Fourth Annual
Legal & Policy Issues in the Americas Conference (2003), 16 FLA. J. INT'L L. 1 (2004). See also
Ronald J. Daniels & Michael Trebilcock, The Political Economy of Rule of Law Reform in
Developing Countries, 26 MICH. J. INT'L L. 99 (2004) (grouping obstacles to rule of law into three
general categories-resource and institutional capacity shortcomings; social-cultural-historical
problems; and political-economy barriers-and arguing that political-economy obstacles, including
opposition by key interest groups, have been the biggest barriers in Latin America and Central and
Eastern Europe). Of course, Latin American and African countries differ in significant ways that
affect the paths of legal reforms. Space limitations permit me to paint with only the broadest of
brushes. For a more detailed discussion of several Latin American countries, see DEZALAY &
GARTH, supra note 13.

[19:1



2005] CONSTITUTIONAL DEMOCRACY IN CHINA

Table 3: Correlation of Wealth and Measures of Development

Region

0a

Measure --
.- A•l..

Allo

Human
Development
Index (HDI)
2001
Gender-related
Development
Index (GDI)
2001

Rule of Law

Government
Effectiveness

Control of
Corruption

Voice and
Accountability

PTS 2002
(Al & State)

.92 .88 .93 .97 .86 .97 .88 .93 .94

.93 .87 .92 .98 .89 .97 .90 .92 .83

.82 .58 .91 .95 .90 .81 .64 .89 .92

.77 .49 .90 .98 .92 .85 .69 .78 .91

.76 .55 .88 .96 .81 .83 .67 .77 .86

.29 .50 .94 .75 .73

0.22 0.42 0.74 0.71 0.21

.34 .18 .85

.10 0.25 0.48

74 1 9 0 0 0 5

Cell entries are Pearson's R coefficients. Dependent variable is natural log of GDP per capita.
*p <.05, **p < .01

C. Legal Reforms, Economic Growth and Democratization

Rule of law and democracy tend to be mutually reinforcing. 4

However, rule of law need not necessarily march in lock-step with
democracy, and in Asia and the Middle East several of the legal systems

44 See, e.g., Rigobon & Rodrik, supra note 16, at 5 (finding that rule of law and democracy are
mutually reinforcing: greater rule of law produces more democracy and vice versa, but the effects
are not strong); Robert J. Barro, Democracy: A Recipe for Growth?, in CURRENT ISSUES IN
ECONOMIC DEVELOPMENT: AN ASIAN PERSPECTIVE 67, 89-98 (Muhammad G. Quibria & J.
Malcolm Dowling eds., 1997) (noting that there is little empirical evidence that rule of law
promotes political freedom).



COLUMBIA JOURNAL OF ASIAN LAW

that score highest in terms of rule of law either are not democracies or are
illiberal democracies.45

Despite limitations on democracy, 46 the use of the legal system to
suppress opposition, and a non-liberal interpretation on many rights
issues, Singapore's legal system is regularly ranked as one of the best in
the world. It was ranked in the top 99 th percentile on the World Bank's
Rule of Law Index in 1996 and in the 9 3rd percentile in 2002. By way of
broad comparison, the United States and the average OECD rankings
were in the 91 st to 9 2 nd percentiles for 1996 and 2002.

Like Singapore, Hong Kong has a well developed legal system
that is largely the product of British colonialism. Until the handover to
the PRC in 1997, the system was widely considered an exemplar of rule
of law, notwithstanding the lack of democracy and a restricted scope of
individual rights under British rule. After the handover, the legal system
continues to score high on the World Bank's Rule of Law Index, with
only a slight drop from 90.4 in 1996 to 86.6 in 2002.

Singapore and, even more clearly, Hong Kong show that
democracy is not a precondition for a legal system that generally
complies with the requirements of a thin rule of law. Among Arab
countries, Oman, Qatar, Bahrain, Kuwait, and the United Arab Emirates
are in the top quartile on the World Bank's Rule of Law Index but have a
0 ranking on the 0-10 point Polity IV Index.

Conversely, just as non-democracies may have strong rule of law
legal systems, democracies may have legal systems that fall far short of
rule of law. Guatemala, Kenya, and Papua New Guinea, for example, all
score highly on democracy (8-10 on the Polity IV Index) and yet poorly
on rule of law (below the 25 th percentile on World Bank's Rule of Law
Index).47

Moreover, both democracy and rule of law are clearly related to
wealth. Empirical studies have yet to sort out the complicated causal
ways in which democracy, rule of law, and wealth interact to support each
other.48 However, one of the striking features of the successful transition

45 What constitutes a democracy is also subject to debate. In the U.K., only 1.8% of the adult
population was eligible to vote as of 1832, and only 12.1% as of 1884, with women receiving the
right to vote only in 1930. In the U.S., only 5% of adults were eligible to vote in 1824, with Blacks
obtaining the right to vote only in 1870, and women following in 1920. ZAKARIA, supra note 9, at
50-51.
46 Singapore's rating for 2002 on the Polity IV scale was 2.
47 Eight other countries receive an 8-10 score on the Polity IV Index and yet score below the 5 0 h

percentile of countries on rule of law: Bolivia, Peru, Jamaica, Macedonia, the Philippines, Moldova,
Nicaragua, and Argentina.
48 A recent study found that while democracy and rule of law are both related to higher GDP levels,
the impact of rule of law is much stronger. See Rigobon & Rodrik, supra note 16, at 5; see also
Randall Peerenboom, Human Rights and Rule of Law: What's the Relationship? 36 GEO. J. INTL L.
(forthcoming 2006).

[19:1



CONSTITUTIONAL DEMOCRACY IN CHINA

in Taiwan, South Korea, and more recently Thailand is that the transition
to democratization has come only after economic growth reached
relatively high levels.

In contrast, those countries that have attempted to democratize at
lower levels have failed in the past, oftentimes reverting to
authoritarianism. Indonesia tried democracy just after independence from
the Dutch between 1950 and 1957. The experiment ended when Sukarno
declared martial law. Thailand went through numerous cycles of
democratic elections followed by military-led coups-there have been
some seventeen coups attempts since 1932. South Korea held elections in
the 1960s and early 1970s before returning to authoritarian rule. The
less-than-successful experiments with democracy in the Philippines from
1935 led to the declaration of martial law by Marcos in 1972. Nowadays,
states that have attempted elections at low levels of wealth and with weak
institutions, such as the Philippines, Indonesia, India, Cambodia, and now
Timor-Leste, continue to limp along with low levels of economic
development, pressing social order problems, and massive discontent with
their corresponding political systems.

The experience of Asian countries in this regard is consistent with
the experience of many countries elsewhere,49 as well as empirical studies
that show that democracies are unstable and vulnerable to economic
downturns at relatively low levels of wealth.50 All too many third-wave
democracies have failed to generate economic growth, implement rule of
law, invest in human capital, or to deliver on human rights promises,
leading to massive discontent on the part of the citizenry, calls to cut back
on liberal rights in favor of a harsher law and order agenda, and in some
cases reversion to authoritarian governments. 51  Even where electoral

49 Pinkney, supra note 32, at 65 (noting the remarkable fact that "almost all third world countries
have had at least nominally pluralist political systems at some time in their history, yet the majority
did not (or could not) build on these to establish durable forms of democracy.").
50 Adam Przeworski & Fernando Papaterra Limongi Neto, Modernization: Theories and Facts, 49(2)
WORLD POLITICS 155, 178-79 (1997); Barro, supra note 44, at 89-98 (analyzing the effects of
economic development on democracy, and concluding that "countries at low levels of economic
development typically do not sustain democracy.").
51 Between 1996 and 2000, only 27% to 37% of Latin Americans expressed satisfaction with
democracy. Support for democracy in 2002 was lower than in 1996 in all but four countries.
According to the Latinobarometer, Latin Americans have lost confidence in democracy because of
the lack of economic growth, the deterioration of public services, the rise of crime, and the
persistence of widespread corruption. As a result, there is little trust in democratic institutions,
including political parties (19%), parliaments (22%), and judiciaries (26%). Nevertheless, Latin
Americans are reluctant to return to the recent past of authoritarian military regimes. In contrast,
several authoritarian regimes in Asia have been successful in providing growth, improving public
services, ensuring stability, and curtailing corruption. Thus, whereas Latin Americans see no
alternative to democracy, many Asians see some form of soft authoritarianism or non-liberal
democracy as viable options. See CoMIsI6N DE PROMOCION DEL PERU, LATINOBAROMETER:

PUBLIC OPINION IN LATIN AMERICA (2002); see also Juan Forero, Latin America is Growing
Impatient with Democracy, N.Y. TIMES, June 24, 2004, available at http://www.nytimes.com/

2005]



COLUMBIA JOURNAL OF ASIAN LA W

democracy remains in place, governments exist in limbo states variously
described as soft authoritarianism, semi-dictatorship, semi-democracy, or
non-liberal electoral democracy.52

Of course, not all authoritarian systems have succeeded in
achieving economic growth, implementing rule of law, or in making
progress on human rights and other indicators of human wellbeing. Laos,
Myanmar, and North Korea are unfortunate reminders that authoritarian
regimes may go badly astray. Successful reforms require, at minimum,
governments that are willing to invest in institutions, people, and sound
economic policies, coupled with some degree of luck.

D. Constitutionalism and Rights

Even during the authoritarian periods of successful Asian states,
legal reforms began to empower legal institutions and give rise to
constitutional norms, thus supporting nascent constitutionalism. To be
sure, in most cases, judicial independence remained limited, with the
protection of the full range of human rights and, in particular, civil and
political rights suffering accordingly, until after democratization. Thus,
the general pattern was for better performance in terms of social and
economic rights, good governance, and law and order relative to civil and
political rights.

Yet several caveats, qualifications, and disclaimers are in order.
First, South Korea and Taiwan fit the model in that only after
democratization did the courts emerge as independent and authoritative
forces capable of handling even politically sensitive issues involving
controversial constitutional amendments and the criminal liability of past
presidents impartially.53 In contrast, democratization in other countries at
lower levels of wealth has exacerbated or at least failed to resolve
shortcomings in the legal system, including problems with the authority
and independence of the judiciary. In Indonesia, corporatist and
clientelist ties between judges and the political, military, and business
elite have undermined the authority and independence of the judiciary.54

In the Philippines, the courts continue to be so heavily influenced by the

2 004 /06/24/intemational/americas/24PERU.html?ex= 1089065297&ei= 1 &en=7f452d7bbb6ecb 14
(United Nations Report finds that 56% of Latin Americans said economic progress is more
important than democracy. Massive discontent has led to the downfall of six elected leaders after
violent unrest, growing support for neo-authoritarian leaders, and the granting of extrajudicial
powers to effective leaders. There have even been calls in Peru for the return of the authoritarian
leader Alberto Fujimori, who was run out of office on corruption charges.).
52 See Carothers, supra note 42, at 5 (noting that the assumption that many third wave democracies
are in transition to democracy is not accurate, and that the "majority of third wave democracies have
not achieved well-functioning democracies or do not seem to be deepening or advancing whatever
democratic progress they have made.").

[19:1



CONSTITUTIONAL DEMOCRACY IN CHINA

politics of populist, people-power movements that basic rule of law
principles are threatened. 55

Second, the degree of judicial activism varies dramatically from
country to country. The courts in South Korea, Taiwan, India, and the
Philippines are among the most activist. In Taiwan and India, the courts
have gone so far as to strike down constitutional amendments as
unconstitutional.56 In contrast, the Supreme Court in Japan has rarely
struck down laws. Courts in Singapore and Malaysia also continue to
interpret rights narrowly, relying on a positivist rather than a purposive or
natural law-based method of interpretation.57

To be sure, activism is not the same as liberalism. In Thailand,
the courts have shown a conservative inclination to side with entrenched
interest groups.58 Similarly, although Indian courts have come to the aid
of the disenfranchised in a variety of ways, the courts remain organs of
the state, with judges inclined by personal circumstances and professional
training toward moderate rather than radical solutions.59 In Korea and the
Philippines, court decisions are often more a reflection of populism than
liberal principles.

60

In general, Asian courts tend to be very deferential on matters of
national security. National laws frequently prohibit or limit judicial
review of many national security decisions. But even when judicial

53 See generally Tay-sheng Wang, The Legal Development of Taiwan in the 20th Century: Toward a
Liberal and Democratic Country, 11 PAC. RIM L. & POL'Y. J. 531 (2002) (observing that just a few
years ago no one could imagine that the Council of Grand Justices would find newly-amended
constitutional provisions unconstitutional); see also Hahm Chaihark, Rule of Law in South Korea:
Rhetoric and Implementation, in ASIAN DISCOURSES OF RULE OF LAW, supra note 12, at 385
[hereinafter Rule of Law in South Korea].

Howard Dick, Why Law Reforms Fail: Indonesia's Anti-corruption Reforms, in LAW REFORM IN
DEVELOPING AND TRANSITIONAL STATES, supra note 13.
55 Raul C. Pangalangan, The Philippine "People Power" Constitution, Rule of Law, and the Limits
ofLiberal Constitutionalism, in ASIAN DISCOURSES OF RULE OF LAW, supra note 12, at 371.
56 For a general discussion of cases in Taiwan, see Sean Cooney, The Effects of Rule of Law
Principles in Taiwan, in ASIAN DISCOURSES OF RULE OF LAW, supra note 12, at 417-45; for a
general discussion of cases in India, see Upendra Baxi, Rule of Law in India: Theory and Practice,
in ASIAN DISCOURSES OF RULE OF LAW, supra note 12, at 324-45.\
57 For a general discussion of cases in Singapore, see Lia-ann Thio, Rule of Law Within a Non-
Liberal "Communitarian Democracy", in ASIAN DISCOURSES OF RULE OF LAW, supra note 12, at
183-224; for a general discussion of cases in Malaysia, see H.P. Lee, Competing Conceptions of
Rule of Law in Malaysia, in ASIAN DISCOURSES OF RULE OF LAW, supra note 12, at 225-49.
58 Vitit Muntarbhorn, Rule of Law and Aspects of Human Rights in Thailand: From
Conceptualization to Implementation, in ASIAN DISCOURSES OF RULE OF LAW, supra note 12, at
346, 362.
59 Baxi, supra note 56, at 339 (noting that Indian activists "remain familiar with the meandering
nature of judicial activism"); see also Jamie Cassels, Judicial Activism and Public Interest
Litigation in India: Attempting the Impossible?, 37 AM. J. COMP. L. 495, 515 (1989) (warning that
India's activist judges have been criticized for violating rule of law, and that not all judicial
decisions have favored the oppressed and less fortunate).
60 See Peerenboom, supra note 12, at 21; see also Pangalangan, supra note 55, at 375; cf Hahm,
supra note 53, at 385.

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COLUMBIA JOURNAL OF ASIAN LAW

review is possible, Asian courts have been reluctant to challenge
executive and parliamentary decisions involving national security.6 They
also tend to impose more restrictions on speech and the media, freedom
of association, and the exercise of religion than liberals would prefer.62

To some extent, these broad differences are attributable to different social
and political philosophies, including majoritarian preferences for
communitarianism or collectivism. 63

Third, cultural rights and personal integrity rights have varied
depending on particular circumstances. Cultural rights have been
influenced by the degree of ethnic diversity, the amount of religious
conflict, and the extent to which ethnic or religious diversity has led to
calls for autonomy and independence. Personal integrity rights have been
affected by the degree of political stability, the need to wage civil war or
battle insurgents, and, most recently, concerns over terrorism.64

Fourth, successful East Asian governments have taken seriously
their obligations to provide the necessary minimal conditions for human
flourishing, subject to resource constraints largely in line with GDP
levels, as the empirical studies indicate. However, Asian states have
generally not treated economic and social rights as justiciable. Rather,
government policies reflect traditional paternalistic beliefs that rulers are
obligated to ensure the material and spiritual wellbeing of the people. In
East Asian countries, this belief derives largely from Confucianism; in
other countries it may be supported by Buddhism, Islam, or other belief
systems. While such traditions are grounded in a non-liberal worldview,
they nonetheless provide a normative basis for social, economic, cultural,
and collective rights claims today.65

61 For a discussion of physical integrity rights and derogation of rights in times of emergency,

national security laws, and the effects of the war on terrorism in Asia, see generally HUMAN RIGHTS
IN ASIA, supra note 32.
62 See Show Me the Money, supra note 15, at 112; see also generally HUMAN RIGHTS IN ASIA,

supra note 32.63 For empirical studies showing different value orientations in Asia, see generally CHINA'S LONG

MARCH, supra note 5; Peerenboom, supra note 12; Show Me the Money, supra note 15. See also
VIDHU VERMA, MALAYSIA: STATE AND CIVIL SOCIETY IN TRANSITION (2002) (distinguishing
between Mahathir's nationalist perspective, a less state-oriented communitarianism that shares some
of the nationalist disenchantment with Western liberalism, and a "traditionalism" that also rejects
liberalism but is based on Islam); Thio Li-ann, An ifor an I: Singapore's Communitarian Model of
Constitutional Adjudication, 27 H.K. L.J. 152 (1997).
64 See generally HUMAN RIGHTS IN ASIA, supra note 32.
65 Policies, as well as underlying philosophies, in the area of social or welfare rights vary
considerably from country to country in terms of the required or appropriate role for government.
China and Vietnam have little problem reconciling broad welfare policies with state socialism. In
contrast, Singapore emphasizes the need to avoid welfare dependency while providing individuals
the opportunities and resources to become self-sustaining, as captured in the slogan: give me a fish,
and I eat for a day; teach me to fish and I eat for a lifetime. Nevertheless, the government provides
subsidized housing, schooling, and medical care. Hong Kong, despite its commitment to laissez
faire economic principles, also provides subsidized housing, schooling, and medical care (though

[19:1



CONSTITUTIONAL DEMO CRA CYIN CHINA

More recently, in response to the normative pressure of the human
rights community to treat all rights as indivisible, several Asian countries
have developed an active jurisprudence surrounding economic and social
rights. This is also in line with a redistributive, developmental model of
rule of law in several Asian countries. This conception of rule of law
emphasizes redistribution of wealth and social justice issues domestically,
and the right of development, debt forgiveness, and the obligation of the
North/developed countries to aid the South/developing countries
internationally. 66 Thus, the Indonesian Constitution contains a long list of
social and economic rights, while Indian and Filipino courts have blurred
or overcome the distinction between justiciable and non-justiciable rights
through interpretation of constitutional references to programmatic goals
and directive principles. The involvement of the judiciary in these
complex social and economic policy issues has naturally been
controversial and challenged both in terms of the merits of the decisions
and in terms of judicial competence and the proper role for the courts.

A particularly pressing issue is whether well-intentioned
reformers who push for the incorporation of such a broad array of positive
rights in the constitutions of countries at relatively low levels of economic
development are not setting the government up for failure by promising
citizens more than the government can possibly deliver.6 7 In India, the
Bharatiya Janata Party ("BJP") government was voted out of office
despite overseeing a period of rapid economic growth. The vote reflected
a deep dissatisfaction with growing income disparities and widespread
poverty amidst the growing wealth of some segments of society. The
BJP's campaign slogan of "India Shining" only highlighted the
discrepancies between the haves and the have-nots. By way of
comparison, in wealthy South Korea, which has not made social rights
justiciable, the government only this year made good on its promise to
provide an equal education for all by providing nine years of compulsory
education free of charge.68

Indonesia offers another cautionary tale. After the fall of Suharto,
reformers, flush with optimism, wrote into the Indonesian Constitution

mainly through a pay-as-you-go system). See generally Ian Holliday, Productivist Welfare
Capitalism: Social Policy in East Asia, 48(4) POL. STUD. 706, 712-13 (2000).
66 See Peerenboom, supra note 12, at 29-3 1.
67 See generally CASS R. SUNSTEIN, AGAINST POSITIVE RIGHTS, IN WESTERN RIGHTS?: POST

COMMUNIST APPLICATION 225 (Adras Sajo ed., 1996); but see Kim Lane Scheppele, A Realpolitik
Defense of Social Rights, 82 TEX. L. REV. 1921 (2004) (arguing that courts need to support social
rights, if more in a direct fashion that provides the legislature flexibility in implementation rather
than by specifying an immediate particular minimum level of entitlement for individuals, because
such decisions may provide governments the political leverage to resist the harmful prescriptions of
international financial organizations regarding democratization and marketization).
68 Hahm Chaihark, Human Rights in Korea, in HUMAN RIGHTS IN ASIA, supra note 32.

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some of the most forward-looking ideas of the human rights movement.
Accordingly, the Constitution now provides that each person has the right
to physical and spiritual welfare, to have a home, to enjoy a good and
healthy living environment, and to obtain health services. 69 Reflecting
the "capabilities" approach, each person is entitled to assistance and
special treatment to gain the same opportunities and benefits in the
attainment of equality and justice. 70 The Megawati government in low-
income Indonesia has not been able to live up to such broad commitments
or even to deal effectively with terrorism and rising crime rates.

In contrast, Thailand seems to be following a modified version of
the Asian development model. Having democratized while still a middle-
income country and with relatively weak institutions, the government is
now struggling to improve the standards of living for citizens and
maintain social and political order. The ruling party has acted in many
ways like a traditional Asian government: a strong executive has pushed
through policies aimed at ensuring economic development and a better
standard of living for the majority, while cracking down on drugs, Islamic
insurgents, and other potential sources of disorder, including government
critics. As a result, the economy has recovered, and the deterioration in
quality of life as measured by the UNDP HDI index has reversed.
However, NGOs and rights activists remain critical of government
policies, pointing out that notwithstanding considerable progress,
problems remain with respect to disadvantaged hill-tribe peoples and
other socially vulnerable individuals, and how economic development has
come at the expense of transparency and political participation. 71

Moreover, the war on drugs has led to more than 2500 extrajudicial
killings, while the crackdown on Islamic insurgents has resulted in the
deaths of at least eighty six Muslims. The government has also tightened
control over the media and been critical of human rights organizations.
Not surprisingly, human rights groups have protested. Asia director of
Human Rights Watch Brad Adams has claimed that "Thailand has gone
from being a beacon of freedom in the region to a country of high
concern," and that "[m]uch of the steady progress Thailand has made in
the last decade has been rolled back under Thaksin's tenure. 72 On the

69 THE 1945 CONST. OF THE REPUBLIC OF INDON., art. 28H(1) (amended 2002), available at

http://asnic.utexas.edu/asnic/countries/indonesia/Constlndonesia.html (last visited Feb. 17, 2006).7 0 Id. at art. 28H(2). See generally Amartya Sen, Capability and Well-being, in THE QUALITY OF

LIFE 30, (Martha Nussbaum & Amartya Sen eds., 1993); see also Martha C. Nussbaum,
Capabilities and Human Rights, 66 FORDHAM L. REV. 273 (1997).7 1See Vitit Muntarbhorn, Human Rights in the Era of "Thailand Incorporated (Inc.) ", in HUMAN
RIGHTS IN ASIA, supra note 32 (noting that hill tribes have been disadvantaged in the education of
their children and in their quest for Thai nationality).
72 See Human Rights Watch, Thailand: Elections Amid an Assault on Rights, (Feb. 3, 2005),
available at http://hrw.org/english/docs/2005/02/03/thailal0120.htm (last visited Feb. 18, 2006).

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other hand, the broader public appears to appreciate that governments in
middle-income countries, such as Thailand, will inevitably have difficulty
living up to the oftentimes idealistic standards of their critics. The
overwhelming victory of Thaksin in the 2005 election suggests that most
Thais are more tolerant and supportive of government efforts to address
pressing economic issues within the limits of available resources and to
maintain social order.

III. LAW AND DEVELOPMENT IN CHINA TO DATE

China is largely following "the East Asian path." The
government has emphasized economic growth and political stability,
invested in human capital and institutions, including the legal system, and
progressed slowly with political reforms.

A. Economic Rights and Human Development

China defends its human rights record by pointing to a stunning
rise in wealth that has lifted over 150 million people out of poverty in less
than a decade and improved the quality of life of hundreds of millions
more. With a 2001 GDP per capita (PPP) of US$4020, China, though
growing, is a lower-middle-income country. An official average annual
growth rate of 8.2% from 1975 to 2001 and 8.8% from 1999 to 2001 has
resulted in steady progress in the United Nations Development
Programme's (UNDP) Human Development Index (HDI), from 0.52 in
1975 to 0.72 in 2001.73 The Index measures life expectancy at birth, adult
literacy, school enrollments, and standard of living.

China does much better relative to other countries on the HDI
than it does on the index for civil and political rights. As expected given
the high correlation between wealth and social and economic rights
(r=.92), China outperforms low-income India on all measures, including
infant mortality, life expectancy, and primary school enrollment. 74 Most
notably, China's high score on the UNDP Poverty Index (26), relative to
its already relatively high HDI ranking (104), indicates that China has
done quite well on tackling extreme poverty given limited resources.75

Thus, although nearly half of the Chinese population lives on less than
US$2 per day, the actual standard of living in China, as measured by the

73United Nations Development Programme (UNDP), Human Development Index, at http://www.
undp.org/hdr2003/indicator/indic 4 1 1.html (last visited Nov. 8, 2004).
74 See Assessing Human Rights in China, supra note 7, at 117.
75 The Human Poverty Index-I (HPI-1) quantifies poverty in terms of life expectancy, access to
food and water, and education as measured by literacy rates.

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Human Poverty Index, exceeds countries with higher incomes such as
Iran and South Africa.76

To be sure, economic growth in China has not benefited everyone
equally. There is wide regional variation and a growing income gap. The
eastern coastal region is much wealthier than the rest of the country, and
rural areas are poorer than cities, 77 although the number of poor urbanites
has also grown dramatically. According to the UNDP, in 1998, the share
of national income or consumption of the poorest 10% was 2.4%, and
5.9% for the poorest 20%, whereas the share of the richest 20% was
46.6%, and 30.4% for the richest 10%.78 By 2003, the share of the top
20% had risen to 51%. 79 Meanwhile, 16% live on less than US$1 per
day, while 4.6% live below the national poverty line.80 One-fourth of the
population, or over 300 million people, lack sustained access to an
adequate water source. 81 In addition, 9% of the population is
undernourished and 10% of children under five are underweight for their
age.

Even with increases in the income gap in recent years, however,
China is still roughly on par with the United States and other Asian
countries such as Hong Kong, Singapore, the Philippines, and Malaysia,
and considerably more egalitarian than Zimbabwe, South Africa, Chile, or

82Nicaragua. Moreover, the process of modernization inevitably involves

76 Like other socialist countries, China was more successful than the average country at its income
level in alleviating poverty and improving human development even before implementing economic
reforms. However, like other socialist countries, China was not able to sustain the growth that is
necessary, if not sufficient, to maintain improvement in human development. Thus, while economic
reforms and the transition to a market economy have resulted in deterioration on some measures
such as income equality or led to worse conditions for some people and created new marginalized
groups, on the whole economic reforms have led to improvements for the vast majority of Chinese
citizens on virtually all main human rights indicators. Moreover, while one can always question
whether the government is using the increased wealth in the most effective way to address the many
problems that still exist, China continues to outperform the average country in its income bracket on
most indicators.
77Allen T. Cheng, Rich-Poor Gap Among the Worst, Study Finds With City Earnings Triple Rural
Incomes, Mainland Is On A Par With Zimbabwe, S. CHINA MORNING POST, Feb. 26, 2004, at 7
(reporting that a Chinese Academy of Social Sciences (CASS) poll found urban incomes to be 2.8
times higher than rural incomes, although the actual gap is even greater if subsidies for medicine
and education for urban workers are included).7 8UNDP, supra note 73, at 284 (citing survey data from 1998). Unfortunately, data reported varies
by year depending on availability, with the year not clearly indicated in some cases. While the
World Bank estimates the Gini coefficient in 2002 to be 40.3, the official PRC press has reported
higher numbers of 42.4 in 1996 and 45.6 to 45.8 from 1998 to 2000. See Li Heng, How Wide Is the
Gap of China's Individual Income?, PEOPLE'S DAILY ONLINE, Aug. 31, 2001, at http://english.
9eopledaily.com.cn/english/200108/3 1/eng20010831_78962.html.
China's Reforms Cause Dramatic Widening Gap Between Rich and Poor, AGENCE FRANCE-

PRESSE, Mar. 9, 2003.
8 0UNDP, supra note 73. See also Jonathan Watts, China Admits First Rise in Poverty Since 1978,
2004 WLNR 4591584, GUARDIAN (UK), July 20, 2004 (noting that more than 800,000 farmers
slipped below the national poverty line in 2003).
8 1UNDP, supra note 73, at 223.82See Assessing Human Rights in China, supra note 7, at 118.

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CONSTITUTIONAL DEMOCRACY IN CHINA

a period of urbanization where rural residents are moved into cities and
rural incomes lag behind urban incomes. In a country as large as China,
the process will take several generations to reach a stable equilibrium.

B. Institutional Development: Rule of Law and Good
Governance

Critics are often quick to attribute any failure in governance,
whether the belated response to SARS or AIDS, widespread corruption,
or shortcomings in the implementation of rule of law, to China's political
system, while downplaying similar problems in democratic states.
However, as indicated in Table 4, China outperforms other countries in its
income category, including many democracies, on core good-governance
indicators.

China beats the average for lower-middle income countries in
political stability, government effectiveness, rule of law, and control of
corruption. 83 It is about average for regulatory quality, which is biased
toward neo-liberal economic principles, and falls far short on the voice
and accountability index, which measures civil and political rights.

To be sure, there are still many problems with China's legal
system and governance. However, both have improved remarkably in the
relatively short time since reforms began in 1978. Moreover, as rule of
law is highly correlated with wealth, we can expect that the legal system
will continue to improve as China becomes richer. Many of the
shortcomings in the legal system are the type of systemic problems faced
by many developing countries, including limited access to justice,
inefficient and expensive courts, judicial corruption, and judicial
incompetence. They will require time and additional resources to
overcome.

83 "Political stability and absence of violence" combines several indicators that measure the
likelihood that the government will be overthrown or destabilized by unconstitutional or violent
means, including terrorism. Whereas government effectiveness focuses on the institutional inputs
required to implement policies effectively, "regulatory quality" focuses on the policies themselves.
It includes measures of market-unfriendly policies such as price controls or inadequate bank
supervision, as well as perceptions of excessive regulation of foreign trade and business
development. Kaufman et al., supra note 6.

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COLUMBIA JOURNAL OF ASIAN LAW

Table 4: Quality of Governance in China

CHINA (2002)

Voice and Accountability

Political Stability

Governnent Effectiveness

Regulatory Quality

Rule of Law

Control of Corruption

8 25 58 75 180
Conparison with incone category average (Lower Middle Incone) (lower bar)

Country's Percentile Rank (0-180)

-our..: D. Kf ,, A, Kr 9.y -d M. H .tuzzi, 2003: Go--c Mtter III: Governmnce I tict for 1996-2002
(http : /A . or ldbo • i/9o ce/ ub /9ou t s3•html)

C. Civil and Political Rights

During the Mao era, Chinese citizens were afraid to discuss
political issues with their family members, much less in public with
foreigners. Today, political discussion is commonplace whenever friends
and colleagues meet socially, while visitors are often surprised at how
ready even first-time acquaintances are to criticize the government,
disparage top leaders, or call for faster political reforms. Academics
regularly publish works criticizing the government and calling for greater
democratization and political reforms. Legal scholars and government
officials continue to press for constitutional reforms including greater
judicial independence. The media, forced to respond to consumers'
interest as a result of market reforms, is ever more critical and free-
wheeling.

At the same time, the government continues to impose, in some
cases ruthlessly and with little regard for legal niceties or international
opinion, severe limitations on civil and political freedoms when it deems
the exercise of such rights to threaten the regime and social stability. The
lines of what is permissible and what is not are clear and fixed in some
areas, but vague and fluid in others. As important as the subject matter
are the time, place, and manner of expression. What may be tolerated in

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some circumstances may be subject to greater restrictions when there are
certain aggravating factors present, such as attempts to organize across
regions, reach an unidentified and potentially large audience via the
Internet, or hook up with foreign organizations.

Accordingly, China receives a very low score on civil and
political rights - ranking in the lowest 10% of all countries on the World
Bank's voice and accountability index. China scores poorly relative to
many countries in Asia, and even does poorly relative to its level of
economic development.

84

Chinese leaders argue that given China's huge population and
current level of economic development, subsistence is the most
fundamental right. Moreover, stability is a prerequisite for the enjoyment
of all rights. The need to ensure economic development and stability
justifies limitations on the exercise of civil and political rights. This view
is widely supported by Chinese citizens and by the majority of citizens in
poor developing countries around the world.85 Moreover, the government
argues that the international human rights regime assumes a liberal
democratic framework and emphasizes implicitly, and in some cases
explicitly, individual autonomy to a degree not found in other traditions.
Greater weight should be placed on the interests of specific groups within
society, of the society as a whole and of the state itself. In addition, the
emphasis on rights should not obscure the importance of duties and the
responsibilities of individuals toward others.

While there is more truth to these points than often allowed by the
government's harshest critics, the question remains whether the current
limitations on civil and political rights are indeed necessary, proportional,
or permitted under any reasonable interpretation of international law or
even PRC law.

84 See Show Me the Money, supra note 15, at 84.
85 For several studies that show the high value assigned to order in China and the limited demand
for democracy, see CHINA'S LONG MARCH, supra note 5, at 519. See also Pew Global Attitudes
Project, What Do Asians Think About Their Own Lives?, in WHAT THE WORLD THINKS IN 2002
(2002), at http://intemational.ucla.edu/asia/news/02pewpolla.asp (recording that 60-84% of
Indonesians, Indians, Filipinos, Vietnamese, and Chinese identify economic difficulties as their
number one concern, with 37% of Indonesians, 44% of Indians, 57% of Filipinos, 31% of
Vietnamese, and 18% of Chinese claiming difficulties in affording adequate food); Yun-han Chu et
al., Halting Progress in Korea and Taiwan, 12(1) J. DEMOCRACY 122, 127 (2001) (noting that in a
1998 survey 65% of Koreans claimed economic development was more important than democracy,
and that in a 1999 survey only one out of seven chose democracy); COMISION DE PROMOCION DEL
PERU, LATINOBAROMETRO, OPINION PUBLICO LATINOAMERICANO, 2002, at http://www.
latinobarometro.org/Upload/prensa2002.pdf (last visited Dec. 20, 2004) (finding that more than
twice as many Latin Americans would choose development over democracy, while 50% agreed or
strongly agreed with the statement that they would not mind having a nondemocratic government if
it could solve economic problems). More than twice as many Chinese felt that economic
development was more important than democracy, according to data from a nationwide survey
conducted by Tianjian Shi in 2002. See E-mail from Tianjian Shi, Associate Professor of Political
Science, Duke University (Aug. 13, 2004) (on file with author).

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Civil and political rights may of course be restricted under certain
circumstances. The ICCPR Human Rights Committee, the European
Court of Human Rights ("ECHR") and other bodies apply a three-part
test. To be valid, the restriction must (i) be prescribed by law; (ii) serve a
legitimate purpose; and (iii) be necessary (in a democratic society).
While this analysis is intended to be conducted on a case-by-case basis
and in light of the particular circumstances at the time, a general
application to the restrictions on civil and political rights in China is also
instructive. A case-by-case approach tends to "skew" the results toward
greater civil and political rights, as it is always difficult to see how the
actions or words of a particular individual could possibly constitute a
threat to the much powerful state, or have much of an impact on a society
of 1.3 billion people. Conversely, a wider perspective that considers the
range of threats from a variety of different sources tends to support more
conservative solutions. A broader approach will usually reflect a more
utilitarian concern for aggregate social benefits, whereas a case-by-case
approach fits more easily with a more moral absolutist or deontological
approach in which rights trump social interests.

Not surprisingly, China and other Asian countries that have
adopted a more restrictive interpretation of civil and political rights
generally defend their positions not by arguing the specifics of individual
cases but by pointing to larger empirical trends; in particular the records
of other developing countries that have adopted a restrictive approach to
rights as opposed to those that adopt a more liberal approach to civil and
political rights. Thus, they point out that the East Asian countries that
have succeeded in maintaining stability and social order, achieving
economic growth, reducing poverty, and improving people's living
standards have adopted a restrictive approach to civil and political rights,
whereas other countries in East Asia and elsewhere that have adopted
more liberal approaches, at least during their period of rapid economic
development, have generally not managed to achieve political stability,
economic growth, or the same level of achievement on other measures of
rights and human wellbeing. Conversely, rights advocates make their
cases by focusing on particular cases.

Neither approach is entirely satisfactory. The latter tends to
underestimate the importance of stability and social order to economic
growth and the protection of human rights; the former runs the danger of
justifying any and all restrictions in the name of political stability, social
order, and economic growth. Many people believe, for instance, that
democracy is not appropriate for China at this stage and that, given the
potential for instability, the government is justified in limiting certain
civil and political rights in the name of social order (and, because social

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CONSTITUTIONAL DEMOCRACY IN CHINA

chaos would undermine economic growth, in the name of development).
Yet they also believe that the government unduly restricts civil and
political rights. A more balanced approach is needed: one that moves
beyond these general arguments to consider specific instances of
restrictions, while at the same time bearing in mind that developing
countries such as China face a number of threats to social order and
political stability that wealthy, politically stable countries do not face.
Thus, China is likely to reach a different balance, given the horrific
consequences for everyone were China to become unstable or Cultural-
Revolution-like social chaos to occur again.

As for the first prong of the three-part test, the Constitution,
national laws, and administrative regulations provide ample grounds for
restricting religious practices, demonstrations, criticism of the
government and the Party, and to justify confiscation of property, fines,
administrative detention, and criminal punishments. Whether the laws
are clear enough to prevent citizens from unexpectedly running afoul of
the law is, however, sometimes an issue, given the broad and vaguely
stated provisions on state secrets, subversion, and endangering the state.
Still, it is unlikely that most defendants are unaware that they are crossing
the line given previous convictions for similar behavior, though many
clearly feel that their actions should not have been considered illegal in
the first place. Nevertheless, a judicial interpretation of subversion and
related charges, and a more restrictive definition of "state secrets," would
go a long way toward clarifying the scope of impermissible activities and
expanding the scope of legitimate activities without detriment to state
interests.

A separate but related issue is whether the Procuratorate has laid
out with sufficient detail the acts constituting the offense of a precise
threat to national security. The dangers of relying on broad allegations of
subversion or endangering the state are readily apparent in this era of
heightened sensitivity to terrorism. Yet courts, in several cases, have
provided little analysis of specific statements alleged to be evidence of
subversion.

86

The restrictions in PRC law generally serve a legitimate purpose
on their face, such as the safeguarding of national security, public order,
or morality. However, in some cases involving criticism of government
policies on AIDS, the number of capital punishment cases, or exposure of
corruption, the restrictions appear only to serve the interest of the ruling
party or to protect the reputation of particular officials rather than to
protect national security or the interests of the nation as a whole. The

86 See Assessing Human Rights in China, supra note 7, at 114.

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tendency of governments around the world to rely on broad state secret
laws and vague references to national security to cover up government
mistakes has been exacerbated since 9-11, and should be resisted in China
and elsewhere. 87 Moreover, by invoking a broad state secret law, the
government prevents defendants from relying on the truth of their
criticisms or statements as a defense; the mere disclosure of the
information is sufficient to find wrongdoing.

The final prong is usually the most crucial. The requirement of
"necessity" as interpreted by the ECHR and other bodies does not mean
the restriction is "indispensable," although it must be more than merely
"reasonable" or "desirable." The ECHR affords countries a margin of
appreciation in deciding what is necessary, with the widest margin in the
areas of national security and morality. In addition to being necessary,
the restriction must also be proportionate, while some jurisdictions such
as the U.S. apply a higher "least restrictive" standard for limitations of
fundamental rights.

The Universal Declaration of Human Rights and other
international agreements require restrictions to be necessary for
democratic order, even though democracy is not required under the
International Covenant on Civil and Political Rights. Some of the
arguments for free speech in a democracy may not fully apply in a
socialist state, although many of the arguments apply at least to some
degree. For example, the argument that political speech, including
criticism of the government, deserves special protection in a democracy
given the need for citizens to elect their leaders may be weakened in a
non-democratic society. In most cases, however, the difference is
between liberal and non-liberal positions. Thus, the liberal emphasis in
other countries on autonomy, individualism, and self-development will
lead to different outcomes than in China. 88 Not everyone assigns the
same value to civil and political freedoms relative to social order. Social
order ranks much higher in the normative hierarchy of most Asian
societies than it does in the normative hierarchy of Western societies.

But even accepting such differences, are the restrictions imposed
by China necessary? To some extent, the response turns on assessments
of China's stability. Ironically, many liberal critics argue that China is
very unstable, which tends to undercut their opposition to restrictions on
civil and political rights.89 China clearly faces a number of threats to

87 Thomas Blanton, National Security and Open Government in the United States: Beyond the

Balancing Test, in NATIONAL SECURITY AND OPEN GOVERNMENT: STRIKING THE RIGHT BALANCE
33 (Campbell Public Affairs Institute ed., 2003).
88 See Joseph Chan, Moral Autonomy, Civil Liberties, and Confucianism, 52(3) PHIL. E. & W. 281

2002).
9 See generally GORDON G. CHANG, THE COMING COLLAPSE OF CHINA (2001).

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CONSTITUTIONAL DEMOCRACY IN CHINA

stability, including increasing rural poverty, rising urban employment, a
weak social security system in conjunction with a rapidly aging
population that has pushed pensioners into the streets to protest for
retirement benefits, and a looming banking crisis that could put an end to
the economic miracle, leading to further unemployment and more unrest.
The desire for greater autonomy, if not outright independence, among
many Tibetans and Xinjiangese, the rise of Islamic fundamentalism in the
region, and the difficulty of separating Buddhism and politics in Tibet
also present risks that cannot be dismissed, even if they should not be
exaggerated.

More generally, authoritarian regimes are particularly stable in the
US$3000 to US$4000 per capita (PPP) range, more so than any other
range, except where per capita income is less than US$1000. 90 However,
the likelihood of a transition to democracy increases when per capita
income is between US$4000 and US$6000, with the tipping point at
which a regime is more likely to be democratic than authoritarian being
US$4115. China is currently at US$4020. Thus, China is just beginning
to outgrow a highly stable period for authoritarian regimes, and is likely
to become increasingly unstable as pressure for political reforms grows.

Another test applied by some courts is to multiply the probability
or likelihood by the degree of harm to calculate the expected danger or
threat.9' With one-fifth of the world's population, almost of half of whom
are living on less than US$2 per day, and a history of chaos as recent as
the Cultural Revolution, the consequences of instability for China, the
region, and the world would be severe. Adopting this measure virtually
assures a wide margin of deference to restrictions in the name of public
order.

In practice, the balance reached by the government seems to be
that individuals are generally free to pursue their own interests, engage in
religious beliefs, or criticize the government as they like, provided that
their acts are not combined with any of the aggravating circumstances
that increase the likelihood of unrest. While acknowledging the
possibility of instability, many judicial decisions fail to provide any
discussion of how the particular acts in question will lead to instability or
endanger the state. A more considered analysis of the nexus between the
acts and disruptions of the public order or harm to the state would expand
greatly t e range of civil and political rights without harming national
security or state interests. It is difficult to see how either a broader
categorical approach or a narrower case-specific analysis could justify the

90 Adam Prezowski & Fernando Limongi, Modernization: Theories and Facts, 49(2) WORLD POL.

155, 161 (1997).
9' See Blanton, supra note 87.

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COLUMBIA JOURNAL OF ASIAN LA W

tight limitations on discussion of issues of legitimate public concern, such
as constitutional reform, medical crises, corruption, government takings,
and rising income gaps. After all, these issues are widely discussed
anyway.

Moreover, whatever the outcomes on the substantive merits, the
many due process violations even under China's own laws-including
incidents of torture, the lack of transparency and a public trial, and
excessively long periods of detention-violate both international and
domestic laws. Nor should lawyers be harassed and prosecuted for trying
to protect the legitimate rights of their clients, or environmental
organizations and human rights groups unable to register or closed simply
for raising issues of genuine public concern. Conversely, officials and
police who rely on excessive force in dealing with demonstrators, or who
turn a blind eye to local thugs who beat and intimidate protesters, should
be held liable and severely punished as a deterrent to others.

With legal avenues to seek redress choked off, citizens are taking
to the streets in massive, increasingly violent, protests. 92 It is in the
government's own interest to rectify these problems, as they tarnish the
government's reputation at home and abroad, undermine the legitimacy of
the Party, and run counter to the government's efforts to promote rule of
law and maintain social stability.

D. Constitutionalism

At this stage, the main role of the Constitution has been to provide
an initial distribution of power among state organs, and thus provide the
background against which legal reforms, which frequently affect the
balance of power among key state actors, are negotiated. For example,
the Constitution now gives the Procuratorate the power to supervise the
courts. In recent years, the Procuratorate has interpreted this power to
mean that it has the authority to supervise final judicial decisions. As
expected, the judiciary has argued that the Procuratorate's power of
supervision should be eliminated, or at least limited to general oversight
of the court or investigation of particular instances of judicial corruption.
According to most judges, the Procuratorate should have no power to
supervise individual cases. The courts have also come into conflict with
the legislative branch over similar powers of individual case s]pervision
and with administrative agencies over the power of judicial eview of

92 See generally Richard McGregor, China's Official Data Confirm Rise In Social Unrest, FIN.

TIMES, Jan. 20, 2006, at 2 (reporting on the announcement by the Public Security Bureau that
"'[p]ublic order disturbances' increased by 6.6 per cent to 87,000 in 2005 as a whole, but mob
violence rose more quickly, by 13 per cent.").

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CONSTITUTIONAL DEMOCRACY IN CHINA

agency decisions. For the time being, most of these conflicts can be
solved only through Party intervention.

The Constitution, for a variety of reasons, has played a limited
role in litigation to protect individual rights. Social activist litigation in
China, while not unheard of, is rare, because China is not a common law
system where cases have precedential value, the legal profession in China
does not enjoy a high social status, and class action suits of the American
variety are not possible under China's civil procedure rules. Moreover,
except for one recent civil case involving the right to education, the
Constitution has not been considered to be directly justiciable; and even
that case did not involve enforcing the Constitution against the
government. 93 Courts in China also do not have the power to strike down
abstract acts in administrative litigation suits; in other words, courts may
not overturn a generally applicable administrative regulation or rule
simply because it is inconsistent with the Constitution or higher level
court decisions. Although the court may apply the higher level law in the
particular case, the conflicting lower level regulation remains in place.

The absence of an effective constitutional court or review entity
has further reduced the importance of the Constitution as a source of
rights protection. In any case, we should not place too much faith in the
establishment of a constitutional court as a way to ensure the protection of
rights. Even if there were a constitutional court or similar entity, it is
doubtful that the Constitution would be interpreted in a liberal way given
the prevailing statist socialist conception of rule of law, the existing
threats to social order combined with support from both the ruling regime
and broad public for stability, and the non-liberal orientation of the
majority of Chinese citizens.

Nevertheless, the Constitution has served those inside and outside
government as a source of empowerment for legal institutions and the
development of constitutional norms. 9 4 In particular, the Constitution has
played a role in establishing broad grounds of legality, accountability, and
justice, which activists and reformers have then drawn on to push for
reforms.

For example, activists, including several law professors, based
their calls to eliminate Custody and Repatriation (t iiI, shourong
qiansong) (where migrants without residence permits could be held in
administrative detention centers or sent back to the countryside without a

93 See generally Shen Kui, Is It the Beginning of the Era of the Rule of the Constitution?

Reinterpreting China's "First Constitutional Case ", 12 PAC. RIM L. & POL'Y J. 199 (2003).
94 Michael William Dowdle, Of Parliaments, Pragmatism, and the Dynamics of Constitutional
Development: The Curious Case of China, 35 N.Y.U. J. INT'L L. & POL. 1 (2002); CAI DINGJIAN,
THE SOCIAL TRANSFORMATION AND THE DEVELOPMENT OF CONSTITUTIONALISM IN
CONTEMPORARY CHINA (unpublished manuscript on file with author).

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COLUMBIA JOURNAL OF ASIAN LAW

habeas corpus right to appeal before a judge) on general constitutional
principles of equality and freedom of movement. They also pointed out
the faulty legal basis for this practice. Whereas national laws required
that all limitations of personal freedom be based on national laws passed
by the National People's Congress, lower level administrative regulations
provided the only legal basis for Custody and Repatriation.95

The Constitution has also provided the normative basis for a
series of discrimination cases. In one case that combined the right to
education with a discrimination claim, three students from Qingdao sued
the Ministry of Education for its admissions policy that allowed Beijing
residents to enter universities in Beijing with lower scores than applicants
from outside Beijing.96 In another case, a person infected with Hepatitis
B recently won an administrative litigation suit when he was denied a
post as a civil servant because of his disease. 97 Other employment
discrimination cases have challenged height, gender, and age restrictions.

Citizens have also drawn on constitutional principles to uphold
privacy claims. In a much publicized case, a Shanxi couple was awarded
damages after police stormed into their bedroom while they were
watching an adult movie and a scuffle broke out between the husband and
police, resulting in injuries to the husband.98

To be sure, some of these cases have been dismissed on technical
grounds, including lack of jurisdiction, failure to apply to the proper
court, or the lack of authority to overturn an abstract administrative act.
Many of these features are typical of the more limited authority of courts
in civil law systems to "make law." Nor do these cases involve political
dissidents or the right to free speech. Parties who invoke the Constitution
to criticize the government or call for greater democratization have been

95
See [M*R, Lit~kt ii jit,} [STATE COUNCIL, MEASURES FOR THE CUSTODY

AND REPATRIATION OF URBAN VAGRANTS AND BEGGARS], May 12 Sess. (1982).96 For details, see : Lk- J[ i [Yu Meisun, On the

Exigency of Renovating the College Recruiting System, Judging From the Two Cases Where the
Ministry of Education is the Defendant], [THE EPOCHTIMES], Apr. 23, 2004, at
http://www.epochtimes.com/gb/4/4/23/n519496.htm, which also reports another case where a
student who did not meet the requirements to take the graduate student exam but was nevertheless
permitted to do so was rejected by the Chinese Academy of Social Sciences even though others who
did not meet the minimal score were admitted. After losing in administrative reconsideration and in
both the Beijing Intermediate Level and Higher Level People's Courts, the student took his case to
the Supreme People's Court, where it is pending. As of the time of publication of this article,
further information on the status of this case was not available.
97" L U " A " M - ' ,, JK 5 t$ ft JW [Plaintiff Zhang Xianzhu Wins The First Case Of
Discrimination Against Hepatitis B], V4* Ica [Ye Cao Xian Feng], Apr. 3, 2004, at http://www.
yecao.net/html/20044324116-1.html (last visited Jan. 14, 2006). While the plaintiff won the suit in
that the court quashed the act to deny him employment, the court could not order the defendant to
provide a job as the post had already been filled. Id.
V8 t f k At J -q: W A &4t E) I=l 1 A J -= M A [Case of Couple Watching Porno D VD
Continues], Vi1 fP [XINHUA NEWS AGENCY], Dec. 22, 2002, at http://news.xinhuanet.com/
newscenter/2002-12/22/content_666765.htm (last visited Jan. 14, 2006).

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CONSTITUTIONAL DEMOCRACY IN CHINA

notably unsuccessful. 99 Nevertheless, these cases signal an increasing
willingness on the part of plaintiffs, lawyers, and courts to look to the
Constitution as the basis for norms and principles that may be applied in
particular cases to expand protection of the rights of individuals, subject
to current doctrinal and jurisdictional limitations in the authorities of
courts.

More generally, the Constitution has provided the basis for a rule
of law government in which state actors must act in accordance with law
(fVMN M, yifa zhiguo) and be held accountable for their decisions. The
government signaled its commitment to a law-based order by amending
the Constitution to expressly provide for a socialist rule of law state ( ±

I rA $d M *iJ [ , shehuizhuyi fazhi guojia). The deepening of a
constitutional norm of legality is particularly evident in administrative
law, where the Administrative Litigation Law allows citizens to challenge
government actions to ensure their legality.' 00

Legality, however, is a rather narrow and easily satisfied standard.
For that and other reasons, the number of administrative litigation cases
has remained small relative to the total number of administrative acts that
could conceivably be challenged. Nevertheless, the Administrative
Litigation Law also stands for the broader principle that government
actors must be held accountable.

There are an increasing number of mechanisms to hold
government officials and even judges accountable. The Administrative
Reconsideration Law allows citizens to challenge government actions on
the grounds of both legality and the much wider standard of
reasonableness. Administrative supervision committees play a role
similar to ombudsmen in other countries. In many places, these
committees have merged operationally with Party disciplinary
committees, enhancing their authority, if complicating their status, in light
of rule of law principles that draw a line between law and politics.
People's congresses have increased legislative supervision of
administrative agencies and, more controversially, of the courts. The
auditing system in particular has been greatly strengthened under the
leadership of Li Jianhua, who has disclosed corruption and abuse of
power at high levels. Other agencies such as the Environmental Bureau

99 For instance, Wang Zechen was sentenced to six years for subversion for attempting to establish a
Liaoning branch of the banned China Democratic Party, attacking the Party as a dictatorship, and
advocating the end of the single party system and the establishment of a multiparty system with
separation of powers. In court, Wang did not contest the facts but argued the acts were legal. See
Assessing Human Rights in China, supra note 7, at 104.
100 For a more detailed discussion of administrative litigation, administrative reconsideration, and
other mechanisms for holding government officials accountable, see CHINA'S LONG MARCH, supra
note 5, at 394.

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and Ministry of Labor and Social Security have also been more
aggressive in ensuring compliance with regulations, including
environmental and safety standards.

Further, despite limitations, the media has emerged as a powerful
source of government supervision, to the point where some commentators
have questioned whether the media is becoming a demagogue. 101
Citizens have effectively used the media and Internet to hold the
government and even the judiciary accountable. The Sun Zhigang case,
where a college student was beaten to death while in administrative
detention, was widely discussed in the media and on the Internet. The
public attention was instrumental in the government's decision to
eliminate Detention and Repatriation, the particular form of
administrative detention used to detain Sun. Similarly, the Internet was
flooded with criticisms of the court for its handling of the "BMW case,"
where a woman from an allegedly influential family drove her car into a
crowd, killing one and injuring twelve. She received a suspended
sentence for negligence rather than a much harsher penalty, including
perhaps the death penalty, for intentional murder. 102 Many people
believed she received the lighter sentence because of her family
connections. In the end, the government established a committee to
review the case.

The media's job is being made easier by local freedom of
information acts. A number of local governments, including those of
Shanghai, Guangzhou, Shenzhen, and Beijing, have passed or are
reviewing open government information acts. The State Council is also
contemplating a national open government information act, and the
National People's Congress has included a freedom of information law on
the legislative agenda.10 3

The Letters and Visits system provides citizens still another
channel to challenge government actions. 10 4 Most governments, people's
congresses, and courts have a Letters and Visits section to handle citizen
complaints. Every year, millions of disgruntled citizens write letters to
senior government leaders or make a pilgrimage to provincial capitals or
Beijing to seek an audience with government officials. The Supreme

101 Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, 105

COLUM. L. REv. 1 (2005).
102 "BMW Case " Reinvestigation Ends, CHINA DAILY, Mar. 28, 2004, at http://www.chinadaily.

com.cn/english/doc/2004-03/28/content_318657.htm; see also Christopher Bodeen, China's 'BMW
Collision Affair' Draws Out Anger, Suspicions Against Newly Wealthy. ASSOCIATED PRESS. Apr. 6,
2004.
103 Jamie P. Horsley, Shanghai Advances the Cause of Open Government Information in China,
FREEDOMINFO.ORG (April 20, 2004), at http://chinalaw.law.yale.edu/shanghaiIarticle.pdf.
104 See generally Carl Minzner, Xinfang: An Alternative to the Formal Legal System, 42 STAN. J.
INT'L L. (forthcoming 2006).

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CONSTITUTIONAL DEMOCRACY IN CHINA

People's Court alone received 152,557 letters and visits in 2002,
including 1140 inquiries from the People's Congress, of which 500
petitions were received during the National People's Congress session
alone. Some courts devote more personnel to responding to letters and
petitions and supervision issues than to actually hearing civil cases.

A related development has been the reliance on mass petitions
signed by legal scholars, political scientists, well-known artists, and other
elites in a number of high profile cases. As noted, legal scholars
submitted a petition calling for the elimination of Custody and
Repatriation after the death of Sun Zhigang. The arrests of Liu Di and Du
Daobin for Internet postings also resulted in considerable public debate
and the submissions of petitions. Liu Di, the Stainless Steel Rat, is a
student at Beijing Normal University. She was detained and then released
months later for operating a popular Web site and posting satirical articles
about the Party, as well as articles calling for the release of Huang Qi.105

Her arrest led to two online petitions signed by over 3000 people.
Similarly, Du Daobin was arrested for posting twenty eight

articles on the Internet, including some that opposed limitations on
democracy and civil liberties in Hong Kong, and for receiving funding
from foreign organizations. 10 6 His arrest led to a petition, signed by over
100 writers, editors, lawyers, philosophers, liberal economists and
activists, calling for a judicial interpretation to clarify the crime of
subversion. Citing the non-binding and decidedly liberal Johannesburg
Principles, the petition argued that seeking change through peaceful
means should not constitute incitement of subversion, and that the
government should not rely on subversion charges to restrict critical
discussion of government shortcomings, maintain the reputation of the
ruling regime, enforce ideological controls, or even prevent instability.
After the petition, Du was convicted of inciting subversion, but his three
year sentence was commuted to four years of probation.'0 7

The use of petitions to protest government decisions and to
challenge court decisions amounts to an indigenous form of litigation
activism. 10 8 It also seems to be an acceptable form of protest, although a

105 Philip P. Pan, China Releases 3 Internet Writers, but Convicts 1 Other, WASH. POST FOREIGN

SERVICE, Dec. 1, 2003, at A14.
106 Security Official Confirms Chinese Man Arrested for Internet "Subversion ", BBC MONITORING

ASIA PAC., Feb. 17, 2004.
107 Internet Dissident Found Guilty of Subversion, but Given Probation, AGENCE FRANCE-PRESSE,

June 11, 2004, available at 2004 WLNR 6934076.
108 On the uses and limits of social activist litigation in China, see CHINA'S LONG MARCH, supra

note 5, at 380-83. See also Michael W. Dowdle & Xinxin Yang, Pragmatic Strategies For The
Development Of Clinical Legal Aid In China (paper prepared for the Workshop on Regulations
Compliance in China: The Lessons of Regulatory Effectiveness, Georgetown Law Center,
Georgetown University, Washington, Nov. 3-5, 2004, arguing that reliance on models of legal aid
imported from Western common law jurisdictions that emphasize public impact litigation have met

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COLUMBIA JOURNAL OF ASIAN LA W

recent campaign by conservative members of the Party against public
intellectuals, combined with the detention and harassment of several
leading academic critics, suggests the limits of the government's
toleration. 109

It is true that mass petitions that mobilize social opinion are not
always successful. While the public uproar in the BMW case led to a
high level reinvestigation, the joint panel of provincial level judges and
police ultimately found the court's decision was proper. Nor are the Du
and Liu cases likely to be a watershed for freedom of speech and
expression on the Internet. Both were fairly marginal cases, in that Du
apparently got into hot water mainly for advocating rapid democratization
in Hong Kong, while Liu wrote satirical criticisms of the CCP but did not
expressly call for overthrow of the government or regime change. In
contrast, Luo Yongzhong was sentenced to three years' imprisonment for
inciting subversion for publishing on the Internet articles calling for the
overthrow of the Party and criticizing the Three Represents and the
government's handling of the Tiananmen incident. Similarly, He Depu
was sentenced to eight years in prison for collaborating with the banned
China Democracy Party, posting essays on the Internet to incite
subversion, and signing an open letter calling for political reforms.
According to his wife, He shouted calls for democracy and criticisms of
the one-party system at his hearing. That Luo, He, and others would
benefit from petitions is unlikely. 10 The fact that legal scholars and
others were willing to draft petitions for Liu and Du suggests that they
saw those cases as stronger, both legally and politically. Petitions are not
likely to lead the authorities to change policies deemed particularly
important for social stability or other objectives.

Nor are the legal and normative positions taken in petitions
always so clear-cut. In the Liu Yong case, where a former NPC delegate
depicted as a mafia boss was sentenced to death subject to a two-year
suspension, public demand for the death penalty was one of the reasons
the Supreme People's Court retried the case and executed Liu."' Indeed,
there are many cases where courts have cited the anger of the public and
the demand for vengeance to justify death sentences. Over 99% of
Chinese favor the death penalty, with over 20% thinking there should be

with limited success and fail to meet the needs of citizens simply for information regarding their
rhts and how and where to apply for welfare benefits and other benefits provided by the state).

Joseph Kahn, China Detains 3 Who Criticized Government, N.Y. TIMES, Dec. 14, 2004, at A10.
110 For further details of these two cases, see Assessing Human Rights in China, supra note 7, at
104, and the cites therein.
11 See generally Chinese Agency Gives Details of Alleged Crime Boss' Trial, Execution, BBC

INT'L REP. (ASIA), Dec. 23, 2003, (discussing the unusual court procedure); Death Penalty for
China Crime Boss, CNN, Dec. 21, 2003, at http://www.cnn.com/2003/WORLD/asiapcf/12/2l/
china.mafia.ap/.

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more executions." 2 Public opinion is therefore a double-edged sword.
While the public outcry over the Sun Zhigang case may have played a
role in ending Detention and Repatriation, the public's demand to strike
hard at crime simultaneously supports a harsh penal system and
administrative detentions. Many judges have complained that public
uproar over cases interferes with judicial independence and undermines
rule of law, either directly by putting pressure on judges to decide a
certain way or indirectly by inducing political actors to take up the issue
and interfere with the court.

Notwithstanding such concerns, on balance, the use of petitions
and the mobilization of social pressure serve positive roles in providing a
vehicle for members of society to supervise the judiciary and influence
government policies.

The broad constitutional principles of rule of law and government
accountability are also evident in the revamping of the approval system.
In recent years, the State Council has embarked on an ambitious program
to overhaul the administrative review system for foreign and domestic
companies alike in an effort to enhance efficiency and reduce corruption.
The new approach confirms a change in policy toward greater
deregulation and reliance on market forces. The Administrative
Licensing Law provided further impetus for a more streamlined system
and provided legal guidelines to ensure local officials do not abuse their
power. Although the reforms are in part a response to corruption and rent
seeking, they also reflect the demands of citizens for fairer, more
transparent and efficient processes in setting up companies, creating
mortgages, transferring technology, engaging in import and export, and
conducting other commercial activities.

Another positive development is an increase in citizen
participation in government decision-making processes. The Law on
Legislation opened the door for greater public participation in the
lawmaking process by calling for hearings and providing for public
commentary on important laws. The National People's Congress is now
drafting an Administrative Procedure Law that would expand the number
of hearings and create other channels and opportunities for citizen
participation in the administrative rulemaking and decision-making
processes.

Citizens are also becoming more directly involved in the political
process by standing for elections. Some individuals have been elected to
people's congress without the backing of Party or government sponsors or

12 See Hu Yunteng, Application of the Death Penalty in Chinese Judicial Practice, in
IMPLEMENTATION OF LAW IN THE PEOPLE'S REPUBLIC OF CHINA 255 (Chen Jianfu et al. eds.,
2002).

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COLUMBIA JOURNAL OF ASIAN LAW

their employers. Indeed, some candidates ran because they wanted to
push for a particular cause, often related to protection of property
interests, reflecting the emergence of strong entrepreneurial middle class;
others wanted to test the election laws and promote democratization.

Representatives elected to office have also begun to show a
greater concern for the demands of their constituents, with some
representatives emerging as populists and social activists. One
congressperson received considerable attention when she took out an ad
in the local paper soliciting opinions and requests from her constituents.
Others have developed a name for themselves by advocating rule of law,
democracy, and civil rights. Some are known for their advocacy on
behalf of particular interest groups such as migrant workers, laid off
workers, or people whose houses have been taken by the government as
part of the process of urbanization and development of city centers or
industrialization in the countryside. Many of the populist legislators
receive assistance from NGOs and lawyers.

More generally, the Party has increased intra-party democracy
and sought to enhance the quality of government officials and civil
servants by requiring officials to stand for election. Some localities have
experimented with election of key Party members, including the Party
Secretary. Similarly, some locales have experimented with direct
elections at the town level, even though direct elections are currently
limited to villages.

All in all, the public has higher expectations of the government.
Businesses and a rising middle class expect a government that facilitates
economic transactions and a legal system that protects their property
rights. Citizens have a greater sense of their rights and are more likely to
appeal to law and constitutional principles in making their claims, even if
they also rely on appeals to broader normative principles such as justice
government and on social networks and other mechanisms to achieve
their ends. In response to public pressure and its own internal
development logic, the government has taken steps to enhance the
professionalism of civil servants, police, judges, and procuratorates.

Taken together, the various changes demonstrate an ongoing
transformation in social, legal, and political culture. Upon taking office,
Hu Jintao signaled a change by paying particular attention to the
Constitution in his speeches, and through such symbolic gestures as
holding Constitution Day to celebrate the increasingly important role of
the Constitution in Chinese society. In 2004, the Constitution was
amended to provide expressly that "the state respects and safeguards
human rights," indicating perhaps a greater commitment to effective
realization of the rights provided by the Constitution. In any event,

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CONSTITUTIONAL DEMOCRA CYIN CHINA

citizens and reform-minded insiders alike are taking advantage of the
political space created by the government's invocation of rule of law,
constitutionalism, and human rights to force the government to make
good on these lofty goals. Although the legitimacy of the government is
primarily dependent on continued economic growth complemented by
appeals to a rising nationalism, it also depends, to some extent, on the
government's ability to make good on its promises to establish rule of
law, abide by the Constitution and enhance citizen participation in
government.

To be sure, the government has moved cautiously on political
reforms, as did other successful Asian states. Clearly, the government
does not want to lose control. The direct election of representatives to
people's congresses is still limited to the lowest level. Judicial
independence remains limited. Despite improvements, many
governmental institutions remain weak.

At present, however, the biggest limit on constitutionalism and
constitutional reform is arguably that there are wide disputes at a
fundamental normative level about the type of society China should be.
The differences between statist socialists, soft authoritarians,
communitarians, and liberals preclude the type of supermajorities needed
to legitimate major constitutional reforms. As a result, while the
Constitution has been amended three times since 1982, the changes have
either been minor or served to provide a greater role to market forces and
the private economy-an area where there is already a sufficiently
dominant view among the various groups to legitimize these changes. To
the extent that a dominant view exists on civil and political issues, the
resulting amendments would produce a non-liberal state rather than a
liberal democracy, at least if the process is determined by majoritarian
preferences rather than a narrow group of elites.

E. Assessing China

How, then, do we assess efforts to implement rule of law in China
to date? The task is more difficult than one might assume, given different
possible time frames and standards of assessment. 13

If one takes a snapshot view, there are still many problems.
Individuals living and working in the system are likely to be both
frustrated by and highly critical of ongoing problems. However, if one

113 For a fuller discussion of these issues with case studies to illustrate the difficulties, see Randall

Peerenboom, What Have We Learned About Law and Development? Describing, Predicting and
Assessing Legal Reforms in China, 27 MICH. J. INT'L L. (forthcoming 2006).

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COLUMBIA JOURNAL OF ASIAN LAW

considers that rule of law took centuries to establish in Western states, the
progress that has occurred in China in less than thirty years is remarkable.

Similarly, if one compares China to the United States or Europe,
or measures China's performance against the idealistic standards of
human rights activists, then one will be bitterly disappointed by "the lack
of rule of law in China." However, comparing China's legal system to
the standard of other developing countries, one cannot help but be more
positive about the accomplishments to date and the prospects for the
future.

The outcome of the assessment will also depend on which aspect
of the legal system one focuses on. The quality of the judiciary varies by
level of the court, region, type of case, and division within the court." 4

Many of the problems with judicial corruption and competence are in
basic level courts. On the whole, courts in the more developed eastern
region and larger cities are more advanced than courts in the western or
middle region and in small towns. Of course, a professional, competent,
and honest judiciary is only one of the institutions required for a
functional legal system; the legislature, police, procuratorate, as well as
the legal, notary, and accounting professions are all progressing at
different rates and confronting their own set of sometimes overlapping
issues.

Different areas of law are also progressing at different paces. The
judicial system has particular problems with two types of cases. First,
direct threats to the regime arising from political dissidents, potentially
disruptive religious-based movements such as Falun Gong, labor activists,
and minority rights activists including Tibetans and Xinjiang Muslims
claiming the fight to self-determination are troublesome. These cases are
problematic because they challenge the legitimacy of Party rule and test
the limits of a socialist regime that rejects the concept of a neutral state to
tolerate ideological diversity. They are also problematic because China is
relatively unstable, and thus the government must proceed with caution
given the high potential for social chaos.

Criminal law is the other main trouble spot for the legal system.
Although a tiny minority of cases are political in nature, the
overwhelming majority of criminal law and administrative detention
cases are not. 115 While crime disrupts social order, criminals do not
directly challenge the Party's right to rule. What makes criminal cases
special and distinguishes criminal law from other areas of law is that there

14 See Hualing Fu, Putting China's Judiciary into Perspective: Is It Independent, Competent and
Fair, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW 336,
344-48 (Eric G. Jensen & Thomas C. Heller eds., 2003).
"1- See Randall Peerenboom, Out of the Pan and into the Fire: Well-intentioned but Misguided
Recommendations to Eliminate Administrative Detention in China, 98 NW. U. L. REv. 991 (2004).

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CONSTITUTIONAL DEMOCRACY IN CHINA

is little support for criminal law reforms on the part of the public, because
the vast majority of citizens see such reforms as harming, rather than
furthering, their interests. Many of the reforms have increased the
efficiency and fairness of the legal system as a whole, as indicated in the
higher scores on the World Bank's Rule of Law Index. Evaluating the
system in terms of broader standards such as justice or human rights is
more controversial, because justice means different things to different
people, and conceptions of human rights are much contested, especially
once one moves beyond the broad wish-list of oftentimes abstract rights
in international treaties to how those broad provisions are interpreted and
implemented in practice. In China alone, liberals, communitarians, neo-
authoritarians, and statist socialists are likely to disagree over many
specific issues, from the proper balance between national security and
freedom of speech and association to the proper standards of judicial
interpretation. 1

16

IV. CONCLUSION: CHINA AND THE EAST ASIAN MODEL-
LESSONS AND LIMITS

The dominant view is that efforts to export rule of law have been
unsuccessful. Yet reforms have succeeded in many cases, most notably
in East Asia, where the legal systems of Japan, South Korea, Taiwan,
Hong Kong, and Singapore are all ranked among the best in the world.
Indeed, China's success to date suggests that it is not a problem case.

It is, of course, still too early to judge China's efforts to establish
rule of law and constitutional democracy, and whether China's rising will
be peaceful. We do not know whether China will succeed in its efforts to
achieve the same level of wealth as Japan, South Korea, Taiwan,
Singapore, or Hong Kong. Nor do we know whether it will be as
successful in implementing rule of law as they are, or in achieving the
same level of success on human rights measures and other indicators of
human wellbeing. Nor do we know when it will democratize in the sense
of general elections for representatives in the highest offices or when, if
ever, it will obtain a rank of 8-10 on the Polity IV Index. However,
China's performance to date has exceeded expectations, and it appears to
be progressing well along the same general path of its East Asian
neighbors.

To be sure, China today will be judged a failure by those for
whom the metrics are civil and political rights and democracy now, not
later. But then, other Asian countries would also have been deemed

116 CHINA'S LONG MARCH, supra note 5, at 71-109.

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COLUMBIA JOURNAL OF ASIAN LA W

failures at similar points in their developmental arc. Indeed, these Asian
states might still be judged failures by those who insist on a liberal
interpretation of rights, as these countries continue to score lower on civil
and political rights measures than others in their income class, and to
limit rights in ways consistent with a communitarian or collectivist
interpretation. Then again, many in Asia would judge Western countries
a failure by their preferred normative standards.' 17

If China is not a problem case, is it a possible model or paradigm
for other developing countries? The success of China and other Asian
countries suggests several important lessons for developing countries.
First, much of the Washington Consensus was right, especially the points
that focused on sound macroeconomic principles for the domestic
economy, such as fiscal discipline, a broad tax base, and public
expenditure on health care, education, and infrastructure. Other aspects,
especially those involving opening the domestic economy to foreign
competition or reflecting particular views about the role of the state in the
economy popular at the time among neoliberals such as privatization or
financial and trade liberalization, have proven to be incorrect or require
adaptation by developing states in light of their particular circumstances.
China's restrictions on trade and foreign investment, its undervalued
currency, and the prudent pace of financial liberalization may upset
politicians and their constituencies in wealthier countries, but they have
served China's economic interests well-just as the restrictions and
subsidies in wealthy countries have served their national economic
interests well. China has enjoyed high growth rates without the shocks,
including a sharp drop in GDP levels and rise in social unrest, that
occurred in Eastern European countries, or the resulting currency crises
that affected some of its Asian neighbors. While economists continue to
debate the proper sequencing of reforms, China's experience supports a
prudential approach that promotes competition within the domestic
economy while gradually opening the domestic economy to foreign
competition, and delays financial liberalization and in particular capital
account convertibility until late in the game." 8

Second, developing countries must continue to invest in human
resources and institutional development. Contrary to some critical
accounts, rule of law is essential for sustained economic growth. This
does not mean that poor countries need to import wholesale the political-

117 See Randall Peerenboom, Beyond Universalism and Relativism: The Evolving Debates about

"Values in Asia ", 14 IND. INT'L & COMP. L. REV. 1, 16 (2003).
118 For a more detailed discussion of the economic policies of China and other Asian countries in

light of the Washington Consensus, see RANDALL PEERENBOOM, CHINA MODERNIZES: THREAT TO

THE WEST OR MODEL FOR THE REST (forthcoming 2006).

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legal institutions found in wealthy states-they cannot and generally
should not. Rather, they must take advantage of local resources to
develop institutions that respond to local needs. Over time, there may be
more convergence in institutions and practices, as countries become
wealthier and are able to afford the costly infrastructure found in
developed countries. But even then, there is ample room for institutional
variation consistent with general rule of law principles.

Nor does the importance attached to rule of law assume that any
legal system actually plays the role or lives up to the ideals sometimes
suggested in civics textbooks. Legal systems are complex. There is
always considerably more discretion than some of the interpretations of
rule of law as a formalistic rule of rules would suggest. But as anyone
who attempts to establish a business, or who is arrested, or who wants to
challenge the government's seizure of his property in Bangladesh, China,
or the United States knows, rule of law matters, and there are
discrepancies in how well legal systems meet the generally accepted
principles of a thin rule of law.

Third, and related, laws must reflect social norms and conditions.
Liberal laws are not always appropriate. When laws are radically at odds
with the deeply held views of the dominant majority, they are rarely
implemented. This creates a gap between law on the books and actual
practice that undermines respect for the legal system and rule of law, and
fuels a resentful nationalism in Asia and other developing countries over
the neo-imperialistic imposition of contested values.

There is undoubtedly much in the ever-expanding human rights
corpus that people in developing states will find attractive. China has
accepted much of the human rights agenda, and amended its laws to
reflect basic human rights principles. However, it has been selective in its
adaptation, rejecting some basic principles, and interpreting or
implementing other principles in light of existing conditions. In that
sense, it has adopted a pragmatic approach that seeks to particularize what
are oftentimes exceedingly broad and abstract principles. In explaining
the growing unease about universal claims, Andrds Saj6 points out:

[T]he unity of humankind under the current terms, to
the extent unity is at all on offer, is unconvincing to
those who feel that this comes at their expense . . ..

[P]roblems that came up time and again include lack of
validity, bias, or even complete irrelevance of universal
legal solutions to fundamental human problems . . ..

Further, human rights thinking and action often suffer

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COLUMBIA JOURNAL OF ASIAN LAW

from the predominance of double standards, arrogance,
and incompetent absolutism of bystanders." 9

The crisis over universalism reflects concerns over the increasingly
specific and comprehensive policy advice being given to developing
countries, as well as the increasingly coercive means of enforcement,
including the imposition of sanctions and in the extreme the use of
military force to effect regime change in the name of humanitarian
intervention and democracy.

Fourth, developing countries should take seriously the rising
inequality that often attends development. Higher inequality leads to
resentment, even if the poor lack the political clout to do much about it.
The government should adopt economic reforms that benefit the broad
majority first, as China and other East Asian states have done. Sacrificing
economic efficiency in the name of equity and social justice is sometimes
justified.

Fifth, political stability is essential. China has been able to
maintain stability, though it has done so at considerable cost, including to
the exercise of civil and political rights. This is a bitter pill to swallow.
But sometimes it is necessary to take bitter medicine to ensure healthy
development.

Sixth-another bitter pill-democratization at lower levels of
wealth is likely to be counterproductive, as it generally has been in other
developing countries.

Seventh, and perhaps the most important lesson for other
countries, is that a pragmatic approach to reforms is essential. One of the
keys to success in China and East Asia more generally has been the
willingness to experiment, to try different approaches to solving common
problems, and then to evaluate the results free of economic, normative, or
political dogma. Although China is often portrayed as a country
dominated by the rigid ideology of Leninist socialism, Chinese leaders
have in fact been resolutely pragmatic, as captured in Deng Xiaoping's
homey advice that the color of the cat matters not as long as it captures
mice. Ironically, nowadays, it is the Western liberal democracies,
particularly the United States, that appear to be dogmatic and
fundamentalist-at least when it comes to giving advice to others on how
to run their countries.

While the success of countries following the "East Asian Model"
is impressive, there are ample reasons to be cautious about taking the

119 Andras Saj6, Introduction: Universalism with Humility, in HUMAN RIGHTS WITH MODESTY: THE

PROBLEM OF UNIVERSALISM 1, 5 (Andrds Saj6 ed., 2004).

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CONSTITUTIONAL DEMOCRACY IN CHINA

Model as the latest blueprint for developing states. To be sure, there are
still doubts about whether there is an East Asian Model at all, and
whether it contributed to or impeded economic growth. Nevertheless, the
general economic approach appears sound. However, the model is stated
at a level of abstractness that still requires policy-makers to make wise
choices in light of particular circumstances. East Asian countries have
diverged on specific policy issues, and other countries that follow the
model will as well.

Even assuming the soundness of the East Asian Model, other
countries may not be able or may not want to follow it. Having
democratized, most developing states will not be able to restrict civil and
political rights in the name of social stability and economic growth as
have China and other East Asian states. Citizens of other developing
countries may also object that the trade-off is unnecessary or not worth it
in their particular case.

In addition, other countries may not have the political or
economic power to resist external pressures to open the domestic
economy to foreign competition in the way China has. A government's
ability to set economic policy is now more constrained by the
international trade regime. As a result of the WTO, the increasing reach
of intellectual property regimes, and multilateral and bilateral trade
agreements, states are less able to favor or protect domestic industries.
Increased competition may also undermine the ability of states to protect
labor or support a generous social welfare system. The "Wal-Mart
phenomenon" may be pushing down margins everywhere, leading to a
race to the bottom that undermines the ability of governments to delay
political reforms by buying off the populace with higher material
standards of living.

More fundamentally, each country faces unique challenges and
opportunities. Along the way, many choices are made. Some institutions
gain power, some lose power; some segments of society are made better
off as a result of reforms, others are made worse off. Accordingly, the
story of modernization or law and development in any given country is
inevitably a story of politics-and largely local politics at that. Thus, it is
not likely that any single model will apply everywhere. At a minimum,
any model would need to be adapted in light of local conditions. Indeed,
the key to the East Asian success has been a willingness to be pragmatic.

Pragmatism has always been about the application of creativity
and intelligence to contemporary problems in order to devise novel and
ameliorative solutions-which themselves will lead to further problems
and the need to continue to experiment with an open mind. Open-minded
reformers cannot afford to look only west or only east, only up to the state

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234 COL UMBIA JOURNAL OF ASIAN LA W [19:1

or down to civil society, or only to culture, politics, or economics. A
more context-sensitive approach is needed. Fortunately, no one seriously
engaged in legal reforms in China seems to think that there is any other
alternative.