IBJ’s China Staff Meets in Beijing

Published by Chinese Business Review January-March 2013

US-China Legal Cooperation Fund

A Legacy of Support for the Rule of Law in China

by Anne Phelan

In the spring of 1999, when the US-China Legal Cooperation Fund issued its first call for grant proposals, there were only a handful of American organizations funding projects to promote the rule of law in China. But there were dozens of American and Chinese law schools, research institutes, and nongovernmental organizations (NGOs) with innovative ideas about how to reform China’s legal institutions and processes. The proposals they submitted in that initial round—and in the 25 rounds that followed—demonstrated the diversity of ideas available to advance the rule of law in China.

At their 1997 and 1998 summit meetings, Presidents Bill Clinton and Jiang Zemin announced a commitment to enhance bilateral cooperation in the field of law. More than 30 American corporations and firms—all members of the US-China Business Council—responded quickly to that call for action, and their contributions laid the foundation for the US-China Legal Cooperation Fund in late 1998. The new fund sought to seed the bilateral cooperation the two presidents described, through projects jointly conducted by American and Chinese partners. In subsequent years, more than 40 companies and firms demonstrated their support for the rule of law in China through contributions to the fund.

Expanding economic ties between the two countries—especially after China joined the World Trade Organization (WTO) in 2001—catalyzed growing interest in the legal framework for trade and investment. With support from the fund, American and Chinese partners have educated legal professionals and law students on intellectual property rights, securities law, commercial dispute resolution, WTO rules, government procurement law, and other topics. Yet the fund’s scope also has reached beyond the business sector, and grants have enabled American and Chinese partners to address criminal law, labor rights, environmental protection, and civil society development, as well as expand access to legal aid services.

Access to government information has been a recurring theme of projects supported by the fund. A partnership between law library staff at Washington University and the National Library of China offers a case in point. In 2006, the libraries began to hold annual forums on disseminating government information for scholars, government officials, librarians and information specialists. The forums introduced the US federal government publication depository system, the Freedom of Information Act, and other tools for disclosure of government information in the American context, generating discussions on how similar tools could be developed in China. This collaboration has had a tangible impact: Some local Chinese governments have set up information depository systems in public libraries and the National Digital Library, under the National Library of China, has created the Chinese Government Public Information Online portal to gather and electronically publish central and local government information.

Even small grants play a role in promoting the rule of law. That is another lesson gleaned from the fund’s 13-year history of grantmaking. For instance, Chinese citizens often are unaware of the legal protections available to people living with HIV/AIDS, or what options are available when victims encounter discrimination. Asia Catalyst, an American NGO, and the Beijing-based Korekata AIDS Law Center used initial support from the fund to staff a hotline that provided people with information on these rights. Later, they developed a curriculum to train advocates for people living with HIV/AIDS. Their hands-on training manuals instruct users on how to recognize when legally protected rights are violated, gather data to document discrimination, and conduct educational and advocacy campaigns. The manuals form a centerpiece for Asia Catalyst and the Korekata AIDS Law Center’s train-the-trainer and NGO coaching workshops, and are available in print or electronic format for others to use in their advocacy efforts.

New opportunities for collaboration have grown substantially. Today, some of the fund’s earliest grantees are able to undertake larger-scale efforts. International Bridges for Justice (IBJ), for example, first began collaborating with Chinese legal aid centers in 2001, with support from the fund. A decade later, IBJ estimates that its partnerships have trained more than 11,000 legal professionals and advised more than 59,000 individuals on their rights. More funders have brought additional, often substantial, resources to the rule-of-law field; the US government, for example, allocated $6.2 million for rule-of-law and good governance projects in China in 2010.

As a result, the fund’s small-scale, seed money approach is less necessary in the current program environment supporting the development of the rule of law in China. The fund’s trustees have decided to wind down the fund’s operations. As the US-China Legal Cooperation Fund brings its own work to a close—after awarding a total of $1.7 million for 125 projects—its sponsors can find satisfaction knowing that the early seeds of support they planted will continue to bear fruit for years to come.

In January of this year I had the good fortune to travel to Geneva, Switzerland on behalf of the Mansfield Center at The University of Montana to meet with Karen Tse, the CEO and founder of International Bridges to Justice (IBJ). Karen is a graduate of UCLA Law School and Harvard Divinity School, a former public defender, and the 2008 recipient of the ABA’s International Human Rights Award. We reached an agreement with IBJ to assist in developing criminal defense clinics in law schools in China. Clinical legal education is still new to China, and criminal defense clinics are even newer. Our current project has 8 participating Chinese law schools, and we will expand the project to 16 schools by the middle of next year. The project is being conducted in conjunction with the Chinese Committee on Clinical Legal Education, the umbrella organization for clinical education in China. Over the next few months, I will describe some of the problems and challenges to legal reform in China, and to the best of my ability give you my perspective on what it’s like for a practitioner from Montana to be participating in that reform.

There are many NGOs that have helped to bring attention to human rights violations around the world. Some of the attention has been productive in helping institute change, some of the attention has hardened government positions. IBJ has a different approach to ending human rights abuses. Karen’s idea to change the world is simple; “Let’s stop complaining and get to work.” IBJ’s mission is:

“In recognition of the fundamental principles of the Universal Declaration of Human Rights, International Bridges to Justice (IBJ) is dedicated to protecting the basic legal rights of ordinary citizens in developing countries. Specifically, IBJ works to guarantee all citizens the right to competent legal representation, the right to be protected from cruel and unusual punishment, and the right to a fair trial.”

To carry out this mission, IBJ works with the criminal justice systems of many countries to assist them with implementing the country’s own laws. Currently IBJ has projects in China, India, Vietnam, Burundi, Cambodia, Rwanda, and Zimbabwe. They are careful not to engage in political activities in its host countries, instead, the focus is to offer training and assistance to those attorneys representing the indigent in criminal cases. IBJ’s vision is that effective defense counsel for the poor is a powerful tool to help end torture and to enhance the rule of law. IBJ’s activities are intensely practical, with training and technical assistance offered on basic and universal criminal defense advocacy skills, tailored to the legal system of each country in which it operates. Rather than criticizing governments, IBJ focuses on helping attorneys that are doing the day to day criminal defense work for the poor around the world.

IBJ first came to China in 2001, and since then has worked with a number of Chinese government agencies, universities and lawyers organizations. IBJ’s idea is to foster reform at the grassroots level by training lawyers and law students in advocacy skills, and to foster reform at the national level by working with policy makers.

China faces many obstacles to implementing criminal justice reform. First among those obstacles is the size of the country. China is home to more than 1.3 billion people, but has fewer than 150,000 lawyers. Their present legal system is 30 years old, and is continuing to evolve. China does provide the right to counsel, but only for certain types of cases: death penalty offenses, juvenile crime, and cases in which the accused is blind, deaf, or mute. All other cases only receive counsel if the court decides to make a discretionary appointment, and if there is an attorney available.

Even if an attorney is appointed, it is an uphill battle to obtain justice for the client. There are three distinct phases of a criminal prosecution in China: the investigation stage (in which the police have control of the case), the prosecution stage (in which the prosecutor has control of the case), and the trial stage. Attorneys are most frequently appointed only at the trial stage, often just a few days before the trial begins. There are about 5000 full time legal aid attorneys, not nearly enough to represent all those charged with crimes. If the case is sent to a private attorney, the amount paid to the attorney may not cover the actual costs the attorney will incur. If the attorney becomes too aggressive in investigating the case, there is a distinct possibility the attorney may be prosecuted for interfering with the case. When the case goes to trial, witnesses will rarely appear, there are no rules of evidence that apply and only a very general statutory authority defining what evidence is allowable. Although the number of attorneys in China is increasing, the percentage of indigent defendants that receive legal representation appears to be decreasing. The most recent statistics available (reliable statistics about Chinese criminal justice information are difficult to obtain) indicate that only slightly more than 9% of those accused of a crime receive counsel.

On the other hand, China has come a very long way with its criminal justice system in just a very short period of time. In only 12 years, China has established over 3200 legal aid centers to help the poor with their legal issues. These centers offer free legal assistance in a variety of cases including civil law, administrative law, and criminal cases. China recently amended its Lawyers Law, giving attorneys expanded access to clients in custody. Many academics, lawyers, and jurists, are committed to continuing reform of their criminal justice system. As reform takes place in China, however, it will be at China’s pace and according to Chinese ideas of justice.

IBJ is one of many groups working to advance the rule of law throughout the world, and is interested in building a network of attorneys committed to the rule of law. The organization offers many opportunities for lawyers to participate as volunteers in their reform work, and can be contacted through their website at www.ibj.org.

The Committee of 100 is a national non-partisan organization composed of American citizens of Chinese descent. Each member has achieved positions of leadership in the United States in a broad range of professions. With these diverse backgrounds, members collectively pool their strengths and experience to address important issues concerning the Chinese-American community, as well as issues affecting U.S.-China relations.