Comparative Legal Systems: Fall 2005
Professor Bazyler
Bazyler@aol.com
Course Outline and Reading Assignments
I.
Common Law: England
A. Readings from Comparative Legal Traditions:
1. Read Ch. 9 & 10, but omit the following pages: 488-492, 514-524, 530-537.
2. Read Ch. 11, but omit the following pages: 542-545, 550-553, 556-559, 573-590, 592607
3. Read Ch. 12, but omit pages 608-627, 637-654, 657-670.
B. Readings from TWEN (Supplement)
Supplement
1. A Tale of Two Systems
2. Lawyers and judges will give up wigs
3. Legal reforms will allow direct access to barristers
4. Barrister offers 'open access' as legal system changes
5. Shake-up brings companies cheaper legal advice
6. A solicitor's failure to outline fees
7. New QC Appointments Scheme
8. Site of new Supreme Court named
9. Could a politician be the next Lord Chief Justice
10. Legal aid 'is close to collapse'
11. Time to allow TV cameras into courts
12. Legal firms could benefit from a stock market listing
13. Why allow errant judges to remain anonymous
14. Class action offers hope in the legal battle against Goliath
15. Out of the darkness
16. Human Rights Act
17. A blow for democracy
18. A little light on government
19. Anti-social behaviour in Britain
20. Britain accused of creating terror fears
21. Britain May Create 'Special Courts' for Terror Suspects
22. In Debate Over Citation of Foreign Decisions, It’s Scalia vs. Breyer
23. Konichiwa Bengoshi
II.
Civil Law: France & Germany
A. Readings from Comparative Legal Traditions:
1.
2.
3.
4.
5.
Read Ch. 1
Ch. 2 (Read pgs. 65-73, 77-85, 92-96, 118-129)
Ch. 3 (read pgs 130-133, 152-155)
Ch. 4 (read pgs. 166-168, 179-188)
Ch. 6 (read pgs. 265-274)
B. Readings from TWEN (Supplement)
France
1
Page #
3
4
5
6-7
8
9
10-12
13
14-15
16
17-18
19
20-21
22-23
24-25
26-29
30
31
32-33
34-35
36-37
38-40
41-42
Supplement
1. France Country Profile
2. France: Constitution and institutions
3. Could France de-rail the EU constitution
4. Animals to get official status in French civil code
5. French court condemns Mauritanian torturer under 'universal
competence'
6. French class-action lawsuits
7. French planning their own version of 'Criminal Intent'
8. Big Dominique and his struggle against the Islamists
9. Investigating magistrate raids French finance ministry
10. France orders Al-Manar off the air
11. Religious Tolerance between France and UK
12. For Algerians in France, what future memories
13. French Courts Increasingly Under US Spell
14. French Twist
Page #
43-45
46-47
48-49
50
51
52
53-54
55-56
57-58
59
60-62
63-64
65-66
67-68
Germany
Supplement
1. Germany Country Profile
2. Germany: Constitution and Institutions
3. German Legal System
4. Germany's Election - let the battle commence
5. Selling out human rights
6. European Campaign to End China Arm Ban Angers U.S.
7. Eastern Germany - Still troubled
8. German Justice and the War on Terror
9. Frankfurt is lawyer capital
10. US Firms in Germany Private Equity
11. Fees - Nein, danke
12. New Anti-Discrimination Act (ADA) in Germany
13. German doctor indicted for alleged Nazi-era murder
III.
Page #
69-71
72-73
74-76
77-78
79-84
85-87
88
89-90
91
92-95
96-97
98
99-100
China
A. Readings from TWEN (Supplement)
Supplement
1. China Intro
2. China's Politics - Economist
3. China's leaders begin a crucial debate
4. China's legal system in transition
5. China to amend law on administrative procedure
6. Chinese Banker Is Convicted
7. Chinese Embrace Quickie Divorce
8. China Opens New Inquiry of Times Researcher Held Incommunicado
9. Maintaining the Mao myth
10. China's one child policy - A brother for her
11. The Two Faces of China's Leadership
12. Beijing's expanding military a global issue
13. Chinese Appeal to Beijing to Resolve Local Complaints
14. Beijing 2008
2
Page #
101-109
110-111
112-113
114-119
120
121-122
123-124
125
126-127
128-129
130-132
133
134-135
136
March 14, 2005 Business Week 76
Special Report
A TALE OF TWO SYSTEMS
Western Europeans smoke, take Vioxx, and buy Firestone tires, too. But when they get injured, claims
are handled far differently. Here’s a simplified summary of the key differences between their system and
ours…
Europe
U.S.
Medical Expenses
National insurance plans cover most
health costs.
Private coverage means more
uninsured citizens and higher
personal exposure.
Emotional and Punitive
Damages
Payments for emotional distress
restricted. Punitive nonexistent.
Potential for lottery-like winnings for a
small percentage of victims.
Juries
Payment rulings made by
administrative judges with fee
schedules.
Justice is dispensed by ordinary
citizens. No scientific or business
expertise required.
Contingent Fees
Qu’est-ce que c’est?
Plaintiffs’ lawyer rake in 33% to 40%
of their clients’ winnings.
… and how they play out for all involved
Size of Awards
Much smaller. Even extreme
emotional distress does not lead to
larger awards.
Much bigger. Thanks for sympathetic
juries, multimillion-dollar verdicts
common.
Speed of Payment
Faster. No adversarial process. Less
room for pretrial maneuvering or
appeals.
Slower. It can take years for victims to
recover their money.
Lawyer Population
Much smaller. Very few call
themselves plaintiffs’ attorneys.
More than 1 million, some 10% to
15% of whom represent plaintiffs.
Publicity
Less elaborate pretrial discovery
equals fewer smoking guns.
Battles that should be won in court
are won in press – but public learns
more.
3
The Times of London
Monday, January 14, 2002
Lawyers and judges will give up wigs at civil hearings
By Frances Gibb, Legal Editor
BARRISTERS and judges are set to scrap the wearing of wigs in a break with 200 years of
tradition.
After wide consultation within the profession, the Lord Chief Justice is expected to announce within
weeks a six-month experiment in wigless justice for all civil disputes. The move is a compromise to settle
a long-running dispute over the most enduring symbol of lawyers in England and Wales. Solicitoradvocates, who are barred from wearing wigs, protest that the Bar's monopoly of 18th-century horsehair
is discriminatory and breaches human rights.
With the threat of court action, they are demanding that wigs should go altogether or that solicitoradvocates be allowed to wear wigs as well so that they are not put at any disadvantage in court or seen
as of "lower status".
There is widespread support for wig-wearing among the public as well as among barristers at the
Criminal Bar, who say that it preserves the dignity of the court as well as the anonymity of counsel.
Some senior judges are strongly opposed to allowing solicitor-advocates the right to wear wigs; they say
that if solicitors have the choice of wearing a wig or not, barristers would have to have the choice of
taking wigs off. The result, they fear, would be confusion in the courts.
Under a compromise likely to be endorsed by senior judges, wigs would be removed for civil,
administrative, construction and commercial courts but retained for criminal courts. The change would
have the backing of the Lord Chancellor, Lord Irvine of Lairg, who has complained about the weight of
his full-bottomed wig, worn when sitting as Speaker in the Lords. He has urged the scrapping of wigs for
civil trials, saying that the "very high-quality service provided by barristers is not dependent on wearing
18th-century fancy dress".
The experiment leaves unresolved the question of wig-wearing by solicitor advocates in criminal trials.
The next step could be a challenge under the Human Rights Act 1998. Brian Kennedy, a criminal
solicitor-advocate, has told the Lord Chancellor that the Pounds 300 wigs give barristers an unfair
advantage and breach the principle of "equality of arms" under the 1998 Act. Juries are more likely to be
impressed by a barrister in court attire than with a wigless solicitor, he argues. The scrapping of wigs for
civil trials would be strongly supported by senior judges including Lord Woolf, the Lord Chief Justice, and
Lord Phillips of Worth Matravers, Master of the Rolls.
4
8/16/02 Yorkshire Post
2002 WL 24932413
Legal reforms will allow direct access to barristers.
Members of the public will be able to employ barristers direct, without hiring a solicitor as an intermediary,
in certain criminal and family court cases, by next year, according to plans published yesterday by the
Bar Council.
The significant change in the way the legal profession operates is expected to make the process of
going to court cheaper for clients.
The Bar Council said today that it will be considering detailed rule changes to allow the move this
October.
If approved by the Lord Chancellor the reforms could come into force in 2003.
It follows a report by the Office of Fair Trading (OFT) last year which highlighted a number of restrictive
practices in the legal profession.
The director general of the OFT, John Vickers, said the Queen's Counsel system for senior barristers
was of "questionable value to consumers", and warned them to make significant changes, although he
later conceded the matter could be dealt with by the Lord Chancellor's Department.
A consultation process by the Bar Council concluded that reform should be implemented "cautiously"
and reviewed after two years.
A Bar Council spokesman said direct access would be introduced only in "restricted areas of criminal
and family work, notably for advice and in a very few court matters where, at present, it is clear that the
additional role of the solicitor is not necessary in interests of the client".
There are no proposals to allow direct access in immigration work, while barristers wishing to offer their
services direct will have to undergo compulsory training.
Barristers who have been in practice for less than three years will only be unable to undertake the work
under an experienced supervisor, the spokesman added.
Bar chairman David Bean QC said: "We have thought carefully about how we could make changes in
our rules, which would bring real benefits while protecting the public.
"We are not doctrinaire, but pragmatic, in our approach to securing effective competition in the provision
of legal services.
"As a result of the changes we are putting into place, more people will be able to benefit from the
expertise of the Bar at lower cost."
http://www.rim.co.uk.
5
9/30/04 Western Morning News 8
2004 WL 92673476
Barrister offers 'open access' as legal system changes
The Government's department for constitutional affairs on July 6 this year introduced historic new public
access rules governing the operation of the legal system of England and Wales, designed radically to
reduce the cost of getting legal advice and going to law. The change is crucial to anyone who wants to
resolve a legal problem.
The public can now contact a practising barrister directly (without first having to go through a solicitor,
accountant, land agent or other qualifying intermediary) as long as that barrister is authorised to accept
"public access" - currently less than 150 out of about 12,000 barristers in England and Wales are so
authorised. This cuts out the need for "two conversations" covering the same or similar ground. For
example, a solicitor may have recorded his perception of his client's "story" but have left out aspects
which the barrister thinks he has to go over again with the client. The client then does so without possibly
realising that he is incurring two sets of fees for two different individuals to listen to essentially the same
facts.
Some clients have told me that they did not know the difference between a barrister and a solicitor
(some thought a barrister was a senior kind of lawyer); they did not know the different functions that
barristers and solicitors generally performed and that they could choose their own barrister. Many a
client has told me that he felt that he had to "go along" with whatever his solicitor advised. A barrister
may now tell him that is not so.
Barristers give advice, negotiate or participate in negotiations with an opposing party and appear in court
as well as draft any documents needed in the event of any appeal.
Solicitors are unaffected by the new rules, save that some may expect more competition from barristers
and that is in the best public interest.
I write as one of fewer than 150 out of about 12,000 barristers currently authorised to accept instructions
directly from members of the public.
Public access will suit businesses and individuals who do not need the administrative services of a law
firm. There is a growing opportunity for clients to achieve a dispute resolution with the assistance of a
barrister and without the cost of a solicitor.
The new rules are not carved in stone and are developing all the time.
Barristers are advised to send a client care letter which tells the client what a barrister can do for him
(advise, drafting, court appearances, drafting notices of appeal and the like) and what the first meeting
including any advice the barrister may write will cost. If there is the need for further work, for example
because it appears the client may have a good case, there is a second letter of agreement telling
him/her the total cost or setting out hourly fees with a ceiling above which the barrister will not charge
without informing the client and entering into a further agreement.
Barristers are now also advised to give the client regular reports of what work has been done and what
his/her total fees are (even if the ceiling has not been reached). That way the client can decide whether
to go on or drop the case.
Sometimes fees can thwart "justice". For example, in Evans v Evans (1990) the judge was "dismayed" to
find that the parties were fighting over the ownership of a house worth £125,000 and the professional
advisers' fees on both sides amounted to £125,000.
A knock-on effect of the public access to barristers rules is that instead of solicitors recommending
particular barristers to the client, the public access barrister may now recommend to the client a solicitor
who they consider would meet the client's needs.
6
Corporate clients may even be able to avoid the overhead of the in-house lawyer by establishing a
relationship with a public access barrister.
Gordon Apsion MBA Barrister (Public Access) practises from Publishing House Chambers, St Davids,
Woodford, Bude, Cornwall, EX23 9HZ. Further details about his practice can be obtained from his
practice administrator, Caroline Brown, on 01288 331327.
7
7/6/04 Financial Times 3
2004 WL 85136121
NATIONAL NEWS
By BOB SHERWOOD
Shake-up brings companies cheaper legal advice - BARRISTERS.
Companies should benefit from cheaper legal advice from today after barristers ditched the rule that
prevented clients from engaging them directly. Since the 19th century, with few exceptions, anyone
wishing to employ a barrister had to go through a solicitor, in effect duplicating legal fees. But now clients
will be able to instruct barristers directly for specialist advice, legal drafting and courtroom advocacy.
Although the Bar has been moving towards more open access, the modernisation has been a long time
coming. It follows an Office of Fair Trading report in 2001 that criticised restrictive practices in the legal
profession.
The change to the Bar's code of conduct, which has been approved by the Department for Constitutional
Affairs, was hailed as a "historic moment" by the Bar Council.
Anthony Speaight QC, chairman of the council's access to the Bar committee, said: "This is a historic
and exciting development which will make legal services cheaper. Until now a client who wanted advice
from a barrister not only had to pay the barrister but also had to pay a solicitor for passing on the
instructions. Now unnecessary duplication of legal fees can be cut out. Direct public access will suit
businesses and individuals who do not need the administrative services of a law firm."
However, direct public access will still not be allowed in criminal, family or immigration cases and
barristers will not take on the role of managing litigation that is performed by solicitors.
Clients involved in full-scale litigation are still likely to require the services of a solicitors' firm, and big
companies with in-house legal teams have always been able to use their own solicitors to engage
barristers.
But Mr Speaight said that, with the increasing settlement of disputes by pre-action correspondence,
many clients would be able to bypass solicitors and simply use a barrister to help them draft letters much
more cheaply.
He expected clients to go directly to barristers for legal opinions at the beginning of disputes or to
engage them for mediation.
The widening of direct access builds on a "licensed access" scheme, which has allowed accountants in
tax work and surveyors in planning work to engage barristers without going through a solicitor. Barristers
who intend to be instructed directly by the public will have to undertake training first. More than 50
barristers have already been trained under a pilot scheme.
Michael von Pommern-Peglow, head of Brunswick Chambers, said: "This is particularly useful for
company directors and investors who seek an independent assessment in relation to corporate
governance issues, regulatory issues, transaction risks or contemplated litigation."
8
Irish Independent
Monday, October 4, 2004
A solicitor's failure to outline fees could see them breaking the law
CONSUMERS who take a civil case to court could find themselves in the lucky situation of paying
reduced fees to their solicitor if he/she fails to send out a letter listing likely charges, it has emerged. As
soon as possible after you have given instructions to your solicitor, he/she must advise you in writing of
the fees you will be charged for his/her services.
This is known among solicitors as a Section 68 letter, because it is required under the Solicitors
(Amendment) Act, 1994.
If it is not possible to give you a definite sum, your solicitor must estimate a sum, or at the very least
describe the basis upon which charges or fees will be calculated.
Usually, solicitors will wait until a case is concluded before requiring payment of their fees.
However, sometimes fees will be requested in advance, especially in a case where you run a high risk of
losing.
Usually, if you win your case, most or all of your costs (including legal fees) will be paid by the other party.
If you lose, it is likely you will be obliged to pay all the costs and fees of your own legal team, and that of
the other party.
However, a failure to send out a Section 68 letter listing charges as soon as a solicitor takes instructions
is a breach of solicitors' obligations, and could lead to a fine and censure from the disciplinary body, the
Law Society.
But more significantly for consumers, barrister Patrick O'Callaghan BL points out in the current edition of
theLaw Society Gazette that solicitors could end up having their fees reduced or not allowed at all if they
fail to send out Section 68 letters.
Mr O'Callaghan refers to the case of Goodbody v Colthurst and Tenips Ltd in the High Court, presided
over by Mr Justice Michael Peart.
In his judgment, Mr Justice Peart found that the lack of a Section 68 letter does not remove a solicitor's
right to recover fees.
But he stressed that Section 68 of the Solicitors (Amendment) Act 1994 was designed to put in place
requirements intended to provide greater protection to clients of solicitors when it comes to fees.
The High Court judge pointed out that the size of a solicitor's fees may be materially impacted by a
failure to send out a Section 68 letter.
This arises when fees are disputed and the bill of costs is assessed by a High Court taxing master, a
judicial officer who determines disputed legal fees.
When a Section 68 letter is not sent out, charges may be reduced or not allowed.
"It is in this area that the provision (ie Section 68 of the Act) most keenly bites - in the pockets of
defaulting solicitors," Mr O'Callaghan pointed out.
9
May 27, 2004 Times (UK)
2004 WLNR 5366992
Frances Gibb, Legal Editor
Elite QCs win right to keep title - for now
BARRISTERS have won the battle to keep the 400-year-old title of Queen's Counsel, but future QCs
who fail to come up to scratch will be stripped of the rank under reforms announced yesterday.
In a compromise deal agreed after months of argument in the legal profession, Lord Falconer of
Thoroton, the Lord Chancellor, said that he will no longer be responsible for selecting QCs.
Instead, the title -a passport to higher earnings and status -will be bestowed by the profession through
modern selection methods rather than "secret soundings" from about 400 lawyers and judges.
Applicants will be assessed by a small group of senior lawyers in their field on qualities, such as
advocacy ability, legal knowledge, integrity and client care. Like district judges, they may face all-day
tests.
The Lord Chancellor will retain a veto on names put forward on a list recommended to the Queen.
Until now, successful applicants for Queen's Counsel or silk -who are entitled to charge higher fees have held the title for life without having their skills further evaluated. That will remain for existing QCs.
Ministers will end their involvement in appointing the elite rank but the title Queen's Counsel will be
retained pending a wider review of what other quality hallmarks may be needed for legal services.
Lord Falconer said that he had decided temporarily to retain the QC name because of strong arguments
put forward by City law firms, including its value as a worldwide brand name in attracting business to
Britain's civil courts.
But he announced a wide-ranging review to identify the need for other accreditations in other spheres of
work to help the identify good lawyers.
The title has been widely criticised and was condemned by the Office of Fair Trading as uncompetitive in
2001. Held by about 10 per cent of the legal profession and awarded only for advocacy, it is held for life
and existing QCs will not have their skills re-evaluated.
The new accreditation system, run by the Law Society and the Bar, will be in place by the autumn and
will ensure that women, ethnic minorities and solicitors are better represented among QC appointments,
Lord Falconer said. The first batch of new QCs, or "silks", who will be subject to continuous assessment
will be announced by next Easter.
Lord Falconer said a wider review would be completed by 2006-07 and the QC title was not guaranteed
for ever.
"For the sake of continuity, we have decided to retain the QC title until the outcome of the market study is
clear," he added. "This should not be taken as guaranteeeing the QC title for ever."
Peter Williamson, the president of the Law Society, was disappointed that the title was not ditched.
"We are disappointed that the new accreditation scheme in the first instance will retain the title Queen's
Counsel," he said.
"This is a missed opportunity to demonstrate to the public, users of legal services and lawyers of diverse
backgrounds that the new system is a clean break from the flaws of the past."
10
Lord Falconer said the interim scheme will adopt modern selection techniques to ensure women, ethnic
minorities and solicitors are better represented, while continuing to appoint on merit.
The new system will bring in regular re-application procedures to maintain standards.
"This is a very important step forwards but it's in such a way of ensuring we get the benefits of the old
system while moving it forward," he said.
"It will be an arrangement which is not dealt with by the State, save the fact that we have indicated with
the State making sure that the process is fair.
"The decisions will not be made by the State but by the professional associations."
Of his veto over applications, Lord Falconer added: "I'm very keen not to be involved in making individual
choices. But I'm extremely keen to ensure that the system is one which I have confidence to ensure that
a proper process is done.
"It's got to be a process identifying merit." He added: "I hope I never have to use it (the veto)."
The previous Lord Chancellor, Lord Irvine of Lairg, QC, announced plans last year to abolish the QC title
if a review found it was no longer necessary. No QCs were appointed this year because of the
government's review.
Last year the Queen approved the appointment on Lord Irvine's recommendation of 121 new silks, just
over 30 per cent of lawyers who applied.
www.timesonline.co.uk/law Legal database and Law reports archive
LEADERS IN LAW:

The first Queen's Counsel (King's Counsel during the reign of a male monarch) were appointed at
the end of the 16th century to supplement the advice given to the Crown by law officers.

In the 17th century, the office was granted more frequently and became a gateway to status and
higher earnings. QCs can command fees of between one third more and double those of others.

Until 1996, only barristers were eligible for appointment as Queen's Counsel but the right was then
extended to solicitor-advocates.

Earnings have always been an important selection criterion, with barristers expected to make more
than Pounds 200,000 before they are appointed.

QCs, known as silks because of their silk gowns, traditionally address judges from the front row of
the court while others sit behind.
The Lawyer
Monday, November 29, 2004
Law Soc, Bar Council shake on new QC appointments scheme
The Law Society and the Bar Council have agreed on a revolutionary new scheme for the appointment
of QCs, it was announced last week. Under the new scheme, QCs will be selected by a panel made up
of four non-lawyers, two solicitors, two barristers and a retired judge. The panel will also be able to
revoke the QC standard if silks cease to perform to a satisfactory level.
11
Potential QCs will have to provide a written application supported by references from other lawyers,
judges and clients. Another new element of the proposals is that all lawyers whose written applications
meet the criteria will be interviewed.
Clients will also be provided with information about the area in which a QC works.
Clifford Chance litigation partner Simon Davis welcomed the plan, but said it was unclear to what extent
mediation and arbitration specialists would be included. Traditionally, he said, the silks system rewards
"excellence in advocacy in the higher courts".
However, the proposals generally have been met with approval. Sir John Nutting QC of 3 Raymond
Buildings said: "This will necessarily introduce a greater transparency to the process, and such
transparency is to be welcomed."
Solicitor-QC Michael Caplan, a partner at Kingsley Napley, agreed, saying: "I see it as a good
opportunity for suitable lawyers who meet the criteria to apply for silk."
July 18, 2005 Lawyer 2
2005 WLNR 11332251
Silk door reopens to much tougher selection criteria
Following a hiatus of three years, the first batch of 'transparent' silks will be appointed under new
rigorous selection criteria in 2006.
As first revealed on www.thelawyer.com (11 July), hopefuls have from tomorrow (19 July) until
Wednesday 14 September to apply for silk.
It will then be for the QC Selection Panel, chaired by Sir Duncan Nichol, to assess whether hopefuls
meet the strict set of seven key competencies: integrity; understanding and using the law; analysing
case material to develop arguments; persuading and communicating arguments; responding to
unfolding cases; working with the client; and working in a team. They will do this by way of a formal
interview process and through references from judges, practitioners and clients.
Launching the new system last week, Nichol stressed the importance of improving the diversity of the
silk pool. He also explained that appointments would be made solely on the basis of merit and that,
despite an anticipated deluge of applications, there would be no quota system.
Bar chairman Guy Mansfield QC said: "QC is all about public interest in having the highest possible
standards of advocacy in our courts."
Although the QC kitemark is assessed solely on advocacy skills, consideration will be taken of written
and arbitration advocacy, giving commercial barristers who do not spend much time on their feet, as well
as solicitors and in-house lawyers, a much better chance of success. Since solicitor-advocates became
entitled to QC status back in 1996, only eight have been successful.
Successful applicants will in future have to pay #4,050 for the kitemark, although it will no longer be
given for life.
David Watts, head of the QC appointments secretariat, said the revocation process is still being finalised,
but added that it will apply only to those QCs appointed under the new system. Reasons for having silk
revoked will include situations where an advocate has been found guilty of misconduct.
12
The Guardian
Wednesday, December 15, 2004
Clare Dyer
Site of new Supreme Court named
Middlesex Guildhall in central London will be the home of the new supreme court - provided changes to
the grade II listed building meet with the approval of English Heritage and get through Westminster city
council's planning process. The lord chancellor, Lord Falconer, announced the long awaited decision
yesterday in a written statement to the House of Lords.
The historic building, which faces the Houses of Parliament on the opposite side of Parliament Square,
will cost pounds 30m to renovate and will be open for business in 2008.
Lord Falconer still faces a battle in getting the consti tutional reform bill, which will create the supreme
court, through parliament. In a concession, he has agreed that if the clause setting up the court becomes
law, it will not be brought into force before the building is ready.
When it does, the 12 law lords will no longer be members of the House of Lords but will become
supreme court justices.
Middlesex Guildhall is now used as a crown court. The crown court work will be moved elsewhere
before aprogramme of refurbishment gets underway.
Moving the UK's top court from parliament was an integral part of demonstrating the independence of
the law lords from government, Lord Falconer said.
Running costs for the new supreme court will be about pounds 8.8m a year, compared with pounds
3.2m a year for the law lords.
Middlesex Guildhall will be refurbished at a cost of pounds 30m
13
February 8, 2005 Times (UK)
2005 WLNR 1746410
Features
By Frances Gibb
Could a politician be the next Lord Chief Justice?
Lawyers fear an erosion of the judiciary's independence, writes Frances Gibb
Rumour that Lord Falconer of Thoroton, the Lord Chancellor, is lining up his former colleague at the Bar,
Lord Goldsmith, QC, the Attorney-General, to be the next Lord Chief Justice has spiced up what looked
to be a one-horse -or at best two-horse -race for the most important judicial job.
Lord Woolf, the incumbent, is expected to announce in the summer that he intends to retire, clearing the
way for a successor in the autumn. The man most widely tipped for the job is Lord Justice Judge,
chosen by Lord Woolf as his deputy, with Lord Phillips of Worth Matravers, Master of the Rolls, also in
the frame. But speculation that Lord Falconer would favour the Attorney-General has provoked muttering
throughout the Inns of Court, not least because Lord Goldsmith, albeit a brilliant lawyer, is an
increasingly prominent government minister with almost no judicial experience.
Judges and lawyers are reluctant to be quoted, but their reaction is universal.
One judge says: "It would be a very retrograde step if someone with such obvious political alignment
were to be the next Lord Chief Justice." And a leading QC adds: "It would be very odd, quite
extraordinary...turning the clock back about 50 years."
Such a move is far from unprecedented. Before the war it was routine for attorney-generals to step into
the shoes of the Lord Chief Justice. Over four centuries they regularly took the top judicial post, and in
the 19th century all but two did. The last was Lord Caldecote; with the appointment in 1946 of his
successor, Lord Goddard, the practice ended.
As Lord Justice Keene, the chairman of the Judicial Studies Board, put it in a recent lecture to the
Administrative Law Bar Association: "It seems remarkable to those viewing from the 21st century, where
we expect greater political detachment from those holding high judicial office. Yet there was a time when
it was argued, less than 90 years ago, that not merely could the Attorney General move directly to
become Lord Chief Justice, but that he had a right to first refusal of that office."
This, Keene argued, was thought quite consistent with the separation of the judiciary from the executive.
But times have changed. In the past 18 months, the Government's constitutional reforms have been built
on the notion of strengthening the separation of powers. The Lord Chief Justice is to assume a new and
critical role as head of the judiciary (taking over from the Lord Chancellor), championing its interests and
representing the judicial arm of the constitution. So who does the job matters, arguably, more than
before. One lawyer says: "If this (speculation) is true, what I find astonishing is that we are going through
this huge constitutional change, in which the Lord Chief Justice is to be head of the judiciary, with the
details of that new arrangement thrashed out in a concordat whose whole object is to ensure that the
judiciary remains independent of the executive and of political interference, and in that context it makes
this particularly problematic."
But is Lord Goldsmith just like any other minister? Lord Falconer may well argue that it is not the same
as appointing the Home Secretary to be head of the judiciary. The Attorney-General has a hybrid role:
he is a politician but he is also expected to act in the public interest, independently of the Government.
The Law Commission, the Government's law reform body, has said that when acting in political matters
the Attorney-General "is a highly political animal entitled to engage in contentious politics". But, it added:
"He must not allow political considerations to affect his actions in those matters in which he has to act in
an impartial and even quasi-judicial way."
14
Lord Goldsmith, in other words, could put aside his political hat if sitting judicially – just as the Lord
Chancellor could when he used to sit on cases in the House of Lords. But the same objection as was
made to that practice would surely arise again: whether or not he could be impartial, the public would
perceive that he was not.
One QC says: "He would face a credibility problem. He has been involved in framing this controversial
legislation, and couldn't then sit on cases involving those laws, important cases which the Lord Chief
Justice is expected to preside over."
Another says: "Given his (Goldsmith's) role in legal advice over the war in Iraq and then in defending the
detention of foreign terrorist suspects, it would really be a hostage to fortune to appoint him."
Then there is the Lord Justice Potter factor. Lord Goldsmith, who, like Lord Falconer, was a pupil of Lord
Justice Potter, would face the same accusations of cronyism as did Potter when he was announced as
the next President of the Family Division. The QC says: "Is everyone going to be appointed on the basis
that they were at Fountain Court or know Cherie Booth or Tony Blair?"
As well as lacking judicial experience, Lord Goldsmith is young, at 55, though he is respected as an
outstanding lawyer: despite his commercial law background he has picked up the varied brief of the
Government's cases and fought them with skill. Popularity and regard for his ability might soften the
opposition, though one lawyer says: "He'd probably be very good at the job, but it's not the point."
The appointment of the new Lord Chief Justice will be the first real test of Lord Falconer's belief in the
new concordat. More than all the words of parliamentary debate, the person he picks for this office will
show his true commitment to an independent judiciary.
THE OTHER RUNNERS AND RIDERS

Lord Justice (Igor) Judge, 63: Favourite among judges for the job. Clever, thoughtful and
independent-minded. More conservative than Woolf.

Lord Phillips of Worth Matravers, 67: Respected judge and administrator. Doing good work with civil
justice system so may not be shifted.

Lord Justice Rose, 67: Vice-President of the Court of Appeal (criminal division).
Highly regarded top criminal judge, hugely experienced and ready to speak out over failings in the
criminal justice system. Popular with colleagues -not least for fierce independence.

Lord Justice Keene, 63: Court of Appeal judge. Likeable and friendly; easy manner. Good judge but
also with committees, training other judges etc.
15
July 26, 2005 Times (UK)
2005 WLNR 11680585
Home news
By Frances Gibb Legal Editor
Legal aid 'is close to collapse'
The legal profession is preparing for a confrontation over legal aid with a warning from the head of the
Law Society that the Pounds 2.1 billion scheme is near collapse.
Kevin Martin, 58, who took over this month as president of the 100,000-strong solicitors' body in England
and Wales, said that the rates of pay for lawyers doing legal-aid work were an insult. "The system is
descending into almost terminal decline. Something needs to be done pretty soon and pretty drastically,"
he told The Times. "Without the prospect of more money, the system is in danger of collapse."
His comments coincide with concern from the chairman of the Bar that barristers will refuse legal-aid
work unless Lord Falconer of Thoroton, the Lord Chancellor, increases their rates of pay -pegged for
eight years -for the majority of trials that last up to ten days. Guy Mansfield, QC, said: "The mood is one
of cold anger and a feeling of betrayal. I believe that most criminal practitioners are likely to register their
anger in one way or another. People feel at the end of the road."
The Lord Chancellor has set up a review of the legal aid system, arguing that specific areas cannot be
addressed piecemeal -a move, the Bar says, that will delay fee rises for a year.
Solicitors are also concerned about plans to introduce price-bidding for criminal legal-aid work. Mr Martin
criticised these proposals as a "knife in the wound of legal aid".
Neither leader endorses "strike" action because to do so would flout competition rules. But they say that
such action would be understandable given the level of feeling.
"The proposals for price-competitive tendering are unacceptable in their current form but it is for each
individual solicitor to decide what action he or she should take," Mr Martin said.
He added that the Lord Chancellor had acknowledged the Pounds 130 million shortfall in legal aid but
"that we just have to keep coping".
"But a whole range of people in the justice system are in danger of functioning hardly at all," Mr Martin
added. "There are...Citizens Advice Bureaux; voluntary organisations; law centres...all howling with
degrees of upset, who are running out of road and have to cope with deficiences. And last, but not least,
there is the client. A lot of deserving people are falling through a huge net."
He said that City solicitors -the profitable end of the profession -were also concerned, having
experienced the deficiencies during pro bono work.
Mr Mansfield also criticised the Lord Chancellor yesterday for announcing cuts of more than 12 per cent
from October to the rates for Queen's Counsel, including a second cut in rates for trials lasting more than
ten days.
"Barristers taking these cases will receive a material reduction in their rates of pay," he said. "So at the
same time as delaying the review of fees for junior barristers, he makes these further mercurial cuts. It's
one-way traffic."
The cost, he added, of restoring the 23 per cent rate cut placed on junior barristers was only Pounds 9
million. Instead the Lord Chancellor was making a further cut of Pounds 7 million.
16
July 5, 2005 Times (UK)
2005 WLNR 10512269
By Marcus Rutherford
Features
Time to allow TV cameras into courts
Filming will simply reveal understated and careful drama, says Marcus Rutherford.
LIKE an early morning bather at the Hampstead ponds, the Lord Chancellor is delicately dipping his toe
into the water and may allow a controlled experiment in televising the proceedings of the Court of Appeal.
Modestly, and to prevent the blushes of judges, he is keeping a towel firmly wrapped around his nether
regions so that the public don't get to see the workings of the lower parts of the legal system. Is he
worrying too much about having cameras in court?
Surprisingly, cameras have not always been excluded from our courts -the ban came in only with the
Criminal Justice Act 1925. In those days cameras were bulky and intimidating and it is hardly surprising
that it was decided that the serious workings of the courts should not be distracted for the sake of a still
picture in the local paper. But times have changed, both in the way that news is reported and in the
technology of cameras.
The starting point in the argument is not "under what circumstances should we allow cameras in court?"
but rather "what are the good reasons against giving them access?" Lawyers have a duty to be
passionate about open justice. The idea that justice must not only be done but must be seen to be done
is a fundamental part of the rule of law. In courts up and down Britain reporters cut their teeth trying to
find an interesting angle on yet another road traffic offence, but the working of the courts remains a
mystery to all but a few initiates -and most of them wear a special uniform and speak the language of a
secret society, or so it must seem.
I would be surprised to find anybody prepared to argue that there is not a real need to explain to the
public how their legal system works. The courts, even magistrates' courts, terrify anyone who is
unfamiliar with them. The public's notion of what happens in court or how judges behave is gained from
television dramas or wordy reporting in the newspapers -which is another problem. Most people get their
information about news and current affairs from television rather than from newspapers, and allowing
print journalists into court but keeping TV cameras out is an unjustified discrimination.
There are obviously restrictions that need to apply to the way in which cameras are used, in the same
way that newspapers have restrictions on what they publish, and plainly, witnesses must not feel
intimidated, nor should juries be identifiable. But many of the other arguments put forward for their
exclusion simply do not wash.
Digital cameras are not intrusive and will not distract from court proceedings, unlike the regular flow of
traffic in the public gallery.
There is no real risk that those in the case will play up to the cameras.
Behaviour is likely to improve under the scrutiny of the more public gaze. At a time when the Lord
Chancellor is determined to cut back on what he sees as the waste of time and resources in the legal
system, what better way is there of allowing the public to observe the issues in real time? Cameras may
improve matters at a stroke since few judges, lawyers or court officials would want to be seen to be
disruptive, slow or out of touch.
The worry that cameras will turn court proceedings into a media circus is misplaced. Of course, certain
trials become big news stories, either because of the celebrities involved or the subject matter. In
contrast to the media scrum on the steps of the court that we now see after, say, the Douglas trial or in
America, the Jackson trial, it is surely better for the parties and for the legal system for the public to be
able to see the careful, understated and at times reassuringly boring, drama of the case as it unfolds.
17
The snatched soundbite of the victorious litigant on the steps of the court is hardly the standard against
which to measure balanced court reporting.
In 1998 Lord Lane objected to a serious contemporaneous television reconstruction of an appeal by the
Birmingham Six, not because of any risk that the judges would be unduly influenced by what went out on
television, but he did not like the idea of putting the public into the "seat of justice". The reconstruction
drew from the daily transcript and was the most accurate way to allow the public to see what was
happening in court, but even that proved objectionable. I dare say, however, that had that appeal been
televised, the public would have been better placed to understand how the judges dealt with the issues
in what turned out to be one of the most shameful miscarriages of justice in recent years.
The author is head of the European litigation group at Reed Smith
18
June 16, 2005 Financial Times UK
2005 WLNR 9512600
LEADER
Equity in law: Legal firms could benefit from a stock market listing
A looming shake-up of legal regulation is prompting British law firms to rethink their business models. A
recent survey shows two-thirds of the top 100 firms plan to admit non-lawyers as partners, one in five
intends to seek outside investors and one in 10 aims to list on the stock market. Such innovative thinking
is welcome.
The old model of partnership between lawyers alone has its drawbacks for large law firms, which are
complex businesses - the biggest are multinationals in their own right. Yet management is often weak.
Compared with the best companies, they are often bad at marketing, customer relations, innovation, use
of information technology and process management.
Law firms need to compete for the best managers, finance directors, marketing experts, technology
officers and human resources professionals. Such people may be unwilling to join firms where they are
second-class citizens.
Partnerships work best when they are small enough to share information and manage risks effectively.
Leading law firms are now too big for more than token consultation. This slows decision-making, while
doing little to minimise risks.
Separating management and ownership would allow faster decision-making. Firms would gain access to
lower-cost finance and risk capital. Partners could exchange illiquid partnership equity for more liquid
shares.
There would be a one-off opportunity to capitalise goodwill created by previous generations of partners top law firms could be worth up to Pounds 5bn on market multiples of earnings. However, prudent firms
would not allow the present generation of partners to get rich quick on incorporation: the law is a cyclical
business that needs a cushion of reserves for the bad times.
To many lawyers this is still heresy. They argue that the law is a special case. But so did the old
investment banking partnerships, such as Goldman Sachs, before they went public.
Partnership is not the only form of ownership capable of sustaining business ethics or offering incentives.
Supervision may be exercised more effectively by a tough regulator than by distant fellow-partners. As
for the supposedly dangerous profit motive, law firms have been ruthlessly pursuing profit for years.
Global law firms are subject to restrictions on ownership and business structure in most countries. Nonequity lawyers cannot own US law firms, for example. For this reason, most expect that innovation in
ownership in the UK will be led by domestic firms and by companies adding legal advice to the range of
services they offer.
But the market beckons for big, global firms too. Foreign regulations will evolve; lawyers will emulate
accountants in devising holding company structures to meet different requirements. Meanwhile, top UK
firms have the opportunity to try new forms of competition that could prove attractive models for other
jurisdictions.
19
July 5, 2005 Guardian 17
Features Pages
By Marcel Berlins
If we're trying to make the law more transparent, why allow errant judges to remain anonymous?

There's transparency, and then there's the lord chancellor's version of transparency. From April next
year there will be an Office for Judicial Complaints, to investigate complaints about judges' personal
conduct, and a new judicial appointments and conduct ombudsman, announced last week, whose
functions will include investigating complaints about the way the complaints office deals with
complaints. All, according to Lord Falconer, in the cause of "integrity and transparency" of the brave
new judicial system he's setting up.
Let me say first that the new arrangements are a big improvement on the existing procedures for
bringing complaints against judges. But there is one big flaw. Judges ruled to have misbehaved and who
have been disciplined for their behaviour will not have their names made public. This does not seem to
me to be transparent. Indeed, the words "secret justice" come to mind, and I know of no other serious
profession which runs such an undercover operation to deal with malfeasors within their midst.
There is an exception to this secrecy. If the judge's alleged bad behaviour - say, racist remarks or
unwelcome sexual advances - has appeared in the papers, then his name can be revealed. In other
words, if the tabloids didn't get the story in the first place, it can be kept secret, however badly the judge
has behaved and whatever disciplinary action has been taken against him. This seems an absurd logical
distinction, and one which says to a complainant, "Don't bother going to the authorities, just tell the
tabloids first."
More fundamentally, why should we not be told which judges have misbehaved? In France, the US and
Canada, the public is told of action taken against judges. Why will we still have to put up with a
continuing cover-up? Lord Woolf, the outgoing lord chief justice, supports the secrecy: "One has got to
take into account the need still for the public to appear before the judge, and for him or her to continue to
perform his or her job as a judge." That's a weak argument for keeping the public in ignorance of a public
servant's reprehensible conduct. You do not gain the public's confidence in a system of justice by
suppressing its faults.

Two weeks ago the jury in the libel case between the footballer Harry Kewell and the Sunday
Telegraph over remarks in Gary Lineker's column failed to agree on a verdict. Rather than face the
costs and uncertainty of a high court retrial, Kewell and the newspaper have now settled out of court.
What was not made public was that, at the end of the trial, the judge asked both sides if they were
prepared to accept the jury's majority decision - which could be by as slim a margin as 7 to 5. In criminal
cases in England and Wales, a majority verdict of 10-2 or 11-1 is acceptable. But a little-known rule in
defamation cases allows a valid verdict, however small the majority - provided both sides agree. It's a
gamble. Juries are notoriously difficult to suss out. However well a case seems to have gone, it's still
taking a chance. When Mr Justice Eady offered the option to Kewell and the Sunday Telegraph, one
party said yes and the other refused. No, I don't know which way the jury would have divided.

Can you imagine the media coverage and public discussion of Sandra Day O'Connor's resignation
from the US Supreme Court, and the identity of her successor, being replicated here? Of course not.
Last month, the names of a new lord chief justice of England and Wales, and a new master of the
rolls, were announced. Speculation had been less than rife; reaction to the appointments was
somewhere between muted and nonexistent. As to our highest court, the House of Lords, how
many outside the legal world can name the senior law lord, the top judge in our top court, or list the
12 law lords?
Yes, it's unfair to compare here and there. The US Supreme Court has a social, moral and political
influence far in excess of anything our top courts can claim. The judges can strike down laws. The
procedure for appointing them is far more public - some of it televised - and often controversial. Ah, but
20
when we get our own supreme court in a few years, won't it all change? Won't we get to know our
judges more? Won't we be heatedly debating the pros and cons of judicial appointments? No, actually.
21
August 27, 2005 Independent (UK)
2005 WLNR 13489752
Section: Features
David Prosser
Class action offers hope in the legal battle against Goliath
Group action is one way to take on large companies such as Merck. But it's not easy, warns David
Prosser
The record-breaking award of $250m (pounds 140m) against the pharmaceuticals giant Merck may yet
be reduced on appeal in the US courts. But British law firms are already signing up people who believe
they have suffered side effects after taking Merck's now-withdrawn painkilling drug Vioxx.
Several firms of solicitors are collecting recruits for class actions, in a legal trend imported to the UK from
the US. If UK customers of Merck choose to pursue the company this way, it will be the latest in a series
of high-profile class actions. It isn't only drugs companies feeling the heat " actions over endowment misselling and split-capital investment trusts are pending in the financial services industry.
Anna Rowland, a policy adviser at the Law Society, says class actions have benefits for all involved.
'They can make the law more accessible,' she says. 'And if you have 15 very similar cases, say, it makes
no sense for claimants, the defendant and the courts to incur the same costs 15 times over.'
In the UK, class actions are known as 'group' or 'multi-party' actions. 'The group must have a generic
issue that needs considering, with a common interest, even if the case of each individual is different in
some way,' explains Sapna Malik, a partner at the solicitors Leigh Day. 'The main purpose is to take
cases forward in a more effective and cost-effective way " for both parties.'
Solicitors start out by establishing a group register. Anyone whose case meets certain basic criteria can
apply to join. In the Merck case, the qualification might be that a claimant has been taking Vioxx and
suffered health problems that could be attributable to the drug.
However, David Body, the head of clinical negligence law at the solicitors Irwin Mitchell, warns that
lawyers have to be ruthless in deciding who is allowed to join. 'With commercial actions over issues such
as pensions mis-selling, say, it is easier to establish a generic complaint, but it can be much tougher with
medical claims to establish causation.'
In practice, lawyers take on the cases they think they have the best chance of winning. The final
definition of the group " who can join and who cannot " must be agreed with the defendant, with or
without the intervention of the courts. Once there is a basis for proceeding, the court can issue a group
litigation order.
At this stage, both sides will choose test cases to establish principles that govern each category of claim
within the group. Only members of the group are bound by court rulings. So the fact that another group
or individual wins compensation doesn't necessarily mean you will.
Equally, there are strict deadlines for joining group actions, so that both sides " and the courts " know
what they're dealing with. You won't be able to sign up to a particular action after a certain date, though
you retain all your legal rights and you may be able to sign up to an alternative case.
Malik believes group action has major benefits for individuals. 'It would be very hard for an individual to
take on an international company with practically infinite legal resources,' she says.
However, this type of legal action is not always straightforward. It can be a lengthy process. There can
also be disputes between members of the group over whether to settle a claim.
Above all, never sign up to a group action until you have very clearly understood the potential financial
downside. Solicitors fighting group actions often apply for support to the Legal Services Commission,
22
which administers the legal aid budget. Or they may persuade insurers to underwrite the costs of a case,
though individual claimants may have to pay a premium.
However, neither of these options is guaranteed. The worst-case scenario is that the group is
responsible for meeting the other side's costs if the action is lost. And costs can get complicated " if the
group wins on some cases but not others, for example, or if different members have legal aid or
insurance funding while others do not.
The other side of the coin is that in the UK, group action solicitors do not act on the purest form of the no
win, no fee model pursued in the US. Their costs are met by the other side if they win, or by clients if they
lose.
This means that winnings are payable in full, but check how the money is to be shared out. 'Typically,
there might be different tariffs of award based on the different categories of claim,' Malik says. 'It is
unlikely that awards will be calculated individually.'
There is one other issue to consider. Russell Spago of MSB Solicitors, one company active in the Merck
case, says that people who feel they have been victims of an injustice often want their day in court. MSB
is currently planning on taking cases individually to the US courts, rather than acting on a class basis.
One reason for this, Spago says, is that 'many of our clients want an opportunity to go on the stand and
confront Merck, which most of them would not get in a class action'.
23
January 1, 2005 Economist
2005 WLNR 177157
Freedom of information:
Out of the darkness
The Freedom of Information Act heralds a big change in the relationship between citizens and the state
in Britain
WANT to know how many accidents involving nuclear weapons have occurred in Britain over the past
20 years? Or where police speed-cameras are? Or how many patients have died from the MRSA
"super-bug" in your local hospital? The Freedom of Information Act, which comes into full effect on
January 1st, gives you the right to know all this, and much more. It could mark the end of what the late
Richard Crossman called "the British disease"--an obsession with official secrecy.
Most developed countries--more than 50 in all--have freedom of information laws. Britain's was first
promised in 1974 by the then Labour government. It took more than a quarter of a century to reach the
statute book and a further four years to come fully into force. Although some local authorities are still
scrambling to get their houses into order in preparation for the expected influx of information requests,
most central government departments are now well geared up, with a mass of easily accessible
information already on their websites.
Under the act, anyone, of any nationality, living anywhere in the world, will be able to request information
held by more than 100,000 public authorities and other designated non-governmental organisations in
Britain, and expect an answer within 20 working days, usually free of charge save for the cost of copying,
printing and postage. Only where the costs of retrieving and collating the information are above £600
($1,160) for a central government department (the rough equivalent of three-and-a-half days' work) or
£450 for other public bodies (two-and-a-half days) can a full charge be made or the request refused on
the ground of expense.
There are, of course, exemptions. Anything relating to national security, most personal data, court
records, information subject to parliamentary or legal privilege, or information likely to "prejudice the
effective conduct of public affairs" is subject to an "absolute" exemption which cannot be overridden. But
most exemptions are subject to a public-interest test. Although "public interest" is left undefined, Richard
Thomas, the independent information commissioner set up by the act, has made it clear that he will be
tempted to err on the side of the public's right to know.
Mr Thomas's views matter, for all appeals will be made to him. In the United States, where Mr Thomas
has no counterpart, aggrieved members of the public can seek enforcement of their "right to know" only
through the courts. In Britain, Mr Thomas will be able to take up their cases. Authorities who refuse to
comply with his demands face unlimited fines; individuals face prison sentences.
Civil-rights groups are nevertheless worried that a right of ministerial veto, included in the act, could be
used to block any information deemed too politically embarrassing or sensitive by the government of the
day. The present government's abysmal record of compliance with the non-statutory "open government"
code, in force for the past decade, certainly does not bode well. But Mr Thomas points out that in New
Zealand, on whose freedom of information legislation Britain's act is closely modelled, the ministerial veto
has not been used once in the 17 years since the present system was brought in.
After January 1st, it will become a criminal offence to destroy data for which a valid request has been
made under the act. In the run-up to this deadline, according to newspaper reports, Whitehall's
shredding machines have been working overtime in a last frantic bid to destroy the most sensitive
records. But Mr Thomas remains sanguine about such claims. He reckons that shredding is probably
mostly about "good record housekeeping" and the removal of unwanted trivia. Computer files, in which
most information is kept these days, are notoriously difficult to destroy.
24
Mr Thomas is not expecting any kind of "big bang" on January 1st. He says that a cultural change in the
relationship between citizens and the state was already under way. He expects this now to accelerate,
with lobby groups and journalists leading the charge with some big test cases. No one knows for certain
how many requests the act will attract, but they are likely to number thousands, if not tens of thousands,
a year. Mr Thomas expects that his office may have to deal with around 2,000 appeals in the first year.
Tony Blair has described the Freedom of Information Act as one of the lasting achievements of this
government. He could well be proved right.
25
Daily Mail
Thursday, October 2, 2003
2003 WL 64341527
EDWARD HEATHCOAT AMORY
A triumph for greedy lawyers; Three years ago today the Human Rights Act became law
THIS was just another tidying up exercise, promised the then Home Secretary, Jack Straw. It wouldn't
make any noticeable difference to our lives or our law, and we should all stop scaremongering and trust
in the Government's good sense. But today, exactly three years after the Human Rights Act became law,
we know that Mr Straw was comprehensively and shockingly wrong.
We now know that the Act has been a disaster, undermining Parliament, damaging the judiciary,
enriching greedy Leftwing lawyers, helping criminals and pushing up costs for businesses.
We know all this and yet some ministers still point to the Act as one of the great successes of Tony
Blair's six years in power.
Like most great political disasters, this one started innocuously. Fifty-two years ago, Britain signed an
obscure document called the European Convention on Human Rights (ECHR).
At the time, the war had just ended, Hitler was fresh in everyone's mind, human rights seemed like a jolly
good idea, and no one involved had the slightest premonition of future disaster.
Over the years, the ECHR grew in power and prestige, employing legions of lawyers, and developing a
byzantine court structure based in Strasbourg. It was cumbersome, undemocratic and packed with
judges from countries - such as Turkey and the Ukraine - where human rights were not exactly central to
the political process.
BUT BRITAIN was insulated from its most malign effects by our separate legal system and independent
judiciary. Then Labour came to power, and decided to enshrine the Convention into British law as the
Human Rights Act.
Ministers gave little thought to the implications. They knew that Leftwing lawyers, and in particular the
Prime Minister's wife, Cherie Booth, were very keen on the plan. And that was good enough for them.
But once the law came into force on October 2, 2000, it all changed.
Suddenly, hanging over every piece of British law, every act of Parliament, every decision by a minister,
were a series of loosely specified rights.
They all sounded terribly worthy; a right to a family life, a right to privacy, and so on.
The problem was that no one had the slightest idea what these rights meant in practice, and over the
last four years, our courts have been attempting - in a chaotic, piecemeal and dangerously undemocratic
way - to sketch out the answer.
Judges suddenly found themselves able to overrule parliament. If they thought that a law infringed one
of the rights in the Act, then they could force it to be changed. The views and values of individual judges
suddenly assumed a profound political importance.
One such judge, Mr Justice Collins, whose father founded CND, has been waging what amounts to a
one-man battle against David Blunkett's attempts to tighten up our asylum rules.
Twice in seven years, he has used the law in an attempt to prevent the Government denying benefits to
some asylum seekers. He also ruled that locking up asylum seekers breached their human rights, and
that the Government couldn't detain foreigners suspected of belonging to Al Qaeda.
26
But he is only part of a tidal wave of judicial activism.
The Government has been forced to concede that gay partners should have the same rights as married
couples, thanks to the Act. Prisoners have established their right to father children by artificial
insemination.
A convicted robber won 1,000 in damages because police breached his right to privacy by secretly
filming him to obtain identification evidence. An aggressive beggar, banned from the centre of
Nottingham by magistrates, has been granted legal aid to argue that the ban breaches her right to
freedom of movement.
If anyone with Aids manages to reach Britain, it becomes virtually impossible to deport them, after judges
ruled that it would be a breach of the Act to return them to any country with less effective health care.
A serial burglar and drug addict, featured in a hard-hitting poster campaign by Essex police, is arguing
that his right to privacy was breached by the publication of his photograph.
All of these cases are frankly barmy, but some are more dangerous than others. For example-Mr Justice
Collins ruled that suspected foreign terrorists, whom the Government was unable to deport because they
had claimed asylum, could not be locked up while the Government decided whether they posed a real
threat.
He did so on the grounds that this would breach the commitment in the Act never to discriminate against
anyone on the basis of 'national origin'. But this was simply ludicrous, because it means, in effect, that
our Government is not allowed to treat British citizens differently in any way from foreigners.
ALL THIS argument, of course, has made some lawyers very rich, indeed.
Matrix Chambers, where Cherie Booth practises, has for the first time moved into the top 30 groups of
barristers ranked by annual earnings. Its emphasis on human rights made it 8.8 million - 210,000 per
barrister - last year.
It has also ensured their rapid climb up the career ladder. One, Rabinder Singh, recently became the
youngest ever High Court judge. Another, Kenneth MacDonald, who made his name defending terrorists,
has been appointed, to widespread amazement within the legal profession, as the new Director of Public
Prosecutions.
Many of this new group of lawyers share political views similar to those of Tony and Cherie Blair, who
met each other when they both worked in former Lord Chancellor Derry Irvine's chambers.
But while the ambition of that generation of politically motivated barristers was to enter Parliament, today
their counterparts prefer to remain in the law, where they know they will have far more power than mere
MPs.
Damaging as this is for Parliament, however, it is far worse for the judges.
In the past, our judiciary - in contrast to that in Europe or America - has remained above politics,
evenhandedly administering the law.
But now, judges have been handed a huge measure of political power by the Human Rights Act, and
politicians like David Blunkett are left scrambling to restrain them.
The inevitable outcome will, one day soon, be confirmation hearings for senior judges, where they are
quizzed by parliamentarians about their political views, and appointed only if they agree with the
government of the day. This will be a disaster for the law in Britain, and we will all suffer.
27
So does the Government feel guilty? Not at all. In fact, it is planning to sign up to yet another declaration
of vague rights - the EU's Charter of Fundamental Rights, which will be given legal force by the new
European constitution. This will complicate the picture still further.
Today marks a melancholy anniversary, a day on which to reflect on this Government's single worst
failing; allowing their political prejudices to destroy the institutions on which our democracy is built.
February 24, 2005 Guardian (UK) Home Pages
2005 WLNR 2820924
By Sandra Laville and Clare Dyer
Royal wedding: Human Rights Act to the rescue of wedding
The lord chancellor resorted to the Human Rights Act yesterday to argue that the forthcoming marriage
of Prince Charles and Camilla Parker Bowles would be legal.
As controversy continued over the legality of the civil union and the absence of the Queen from the
ceremony, Lord Falconer issued an emergency statement explaining why the government believed the
marriage would not breach the law. The 1836 Marriage Act prevents any senior royal from marrying in a
civil ceremony and legal opinion has been divided over whether the 1949 Marriage Act repeals this part
of the legislation.
The lord chancellor, in a written statement to the Lords, said he was giving details of his legal view "in
light of the recent interest in the law surrounding royal marriages".
Dipping in and out of the 1836 and 1949 statutes, he waited until the end of his statement to pull the
Human Rights Act from the legal canon as a final weapon.
"We also note that the Human Rights Act has since 2000 required legislation to be interpreted wherever
possible in a way that is compatible with the right to marry (article 12) and with the right to enjoy that right
without discrimination (article 14)," he said.
"This, in our view, puts the modern meaning of the 1949 act beyond doubt."
But Sir Nicholas Lyell QC, a former attorney general, labelled the argument "tenuous".
He said there was still a need for the government to introduce a short bill to clarify the legality of the
marriage.
"The Human Rights Act 1998 does help but it is an unsatisfactory state of affairs when the legality of the
marriage of the Prince of Wales has to depend on that.
"I still think it wiser to put the matter beyond doubt with a short bill."
A spokesman for the Office for National Statistics, which includes the registrar general's service, said
that objections had been received from members of the public but they would only be taken into account
if they were sent on the correct forms to the superintendent registrar who covers the Windsor area.
Any serious complaint could initiate an investigation lasting several weeks.
Prince Charles and his bride-to-be attempted to ignore the furore over a wedding they had wanted to be
"low key".
At a reception in Clarence House the couple entertained Australians and New Zealanders working in the
UK, ahead of the prince's antipodean tour, which begins next week.
28
Amid the crowd were some who rallied to the couple's side. Dame Kiri Te Kanawa, who sang at the
prince's first wedding, said: "I am just so thrilled that he looks so happy. I am so happy for both of them
and I just want to offer my congratulations."
Buckingham Palace continued to insist that the Queen's decision to stay away from the civil ceremony
was not a snub.
A Clarence House spokesman said yesterday: "The civil ceremony was always meant to be low key."
Asked whether the prince viewed the absence of his mother as a snub, he said: "No. They've discussed
it and the prince is happy with the arrangements."
29
The Economist Dec 16th 2004
Law lords
A blow for democracy
Indefinite detention of terrorist suspects is unlawful
IN A blow to both the government's anti-terrorist policies and its moral standing, the House of Lords,
Britain's highest court, ruled on December 16th that the indefinite detention of terrorist suspects without
trial is unlawful. The government will now have to decide whether to charge or release the 11 foreigners,
all north African Muslims, held for up to three years, most of them in Belmarsh maximum security jail in
south London.
Under the Anti-Terrorism, Crime and Security Act, passed in the wake of the September 11th attacks on
the United States, the government gave itself the power to detain any foreigner who poses “a risk to
national security, and has links with an international terrorist group”. This required it to opt out of Article 5
of the European Convention on Human Rights enshrining the right to liberty. No other European nation
has done so.
The European convention allows member states to opt out of Article 5 in cases of “war or public
emergency threatening the life of the nation”, and if the measures adopted are “strictly required by the
exigencies of the situation”. Claiming that the 2001 attacks constituted an “unprecedented form of
terrorism”, the government argued that the measures it had introduced were a “necessary and
proportionate response to the threat we continue to face”.
The law lords disagree. Sitting for only the second time since the second world war in a panel of nine
justices, instead of the normal five, they ruled, by eight to one, that the “draconian” measures were
incompatible with human-rights laws. Lord Nicholls said, “Indefinite imprisonment without charge or trial
is anathema in any country which observes the rule of law. It deprives the detained person of the
protection a criminal trial is intended to afford.” Lord Bingham said the measures discriminated “on the
ground of nationality or immigration status”. The government must pay the costs of the appeal.
The government now has to decide what to do. It has always said that the evidence against these men
is too sketchy or too sensitive to reveal in open court. It must therefore either devise a way of trying the
detainees—perhaps in a special court—or release people it believes to be a threat to national security.
That's a tough decision for the new and untested home secretary, Charles Clarke.
30
January 1, 2005 Economist
2005 WLNR 119677
British Constitutional Reform
A little light on government
The Freedom of Information Act is a good thing, but does not make up for a wider failure
WHEN Tony Blair came to power in 1997, Labour's main challenge was to win economic credibility, so it
committed itself to its predecessor's spending plans for two years. With economic radicalism not an
option, it made much of its big ideas for constitutional reform. They sounded good to liberals worried by
Britain's system of government by nods and winks and keen to check over-centralised executive power.
The Freedom of Information Act, which comes into full effect on January 1st, was central to those ideas.
In a country in which unauthorised parties who revealed the number of sugar lumps a civil servant took
in his tea were once breaking the law, it was supposed to shine a light on what government was up to;
and, by doing so, to discourage the dark dealings to which the unobserved exercise of power can lead.
The act looks likely to live up to expectations. Not that its initial impact on government will be huge people take a while to work out how to use new tools - but the model looks a good one. Unlike
Americans, who have to take the government to court themselves to force it to share its secrets, Britons
have a champion - the information commissioner - to do the job for them.
Yet while the Freedom of Information Act gives grounds for celebration, it also throws into relief the
government's patchy progress in fulfilling those original constitutional hopes. Part of the problem has
been poor political management. Plans to abolish the Lord Chancellor's anomalous role as head of the
judiciary and member of the cabinet were introduced with no consultation, and led to a revolt in the
House of Lords which forced a retreat. In the end, though, the government has given way on keeping the
Lord Chancellor's title, but not on the more important issues of creating a Supreme Court separate from
the House of Lords, and of distancing the appointment of judges from the politicians.
Another part of the problem, however, has been bad faith. In two big areas of constitutional reform, the
government has been looking after its own interests better than its citizens'.
Peering ahead
Setting up assemblies in Scotland and Wales certainly seemed a radical step; yet it has, arguably,
served the government better than the people. It has disarmed the nationalists but has not given those
assemblies the responsibility for raising as well as spending money without which politics never
develops beyond the pork-barrel. The decisive rejection by north-easterners in November of a proposal
to give it a similar assembly may be read as a sharp comment on what the next-door English neighbours
think of Scotland's set-up.
Worse still has been the betrayal over the House of Lords. After getting rid of most hereditary peers, the
government seems to have decided that a more legitimate and therefore more powerful second
chamber would not necessarily be in its interests. Consequently, it tried to force through a mostlyunelected version; gave up in the face of a revolt; then parked the issue with a committee which
shrugged its shoulders and threw it back at the government.
Mr Blair deserves credit for tackling issues which his predecessors have ducked. But if Labour's record
on the constitution is to win, rather than lose, it credit at the election expected in 2005, its manifesto
needs to include a clear commitment to the elected second chamber it so clearly dreads.
31
February 5, 2005 Economist
2005 WLNR 1589155
Anti-social behaviour in Britain:
Taking liberties
What the war on terror and the war on anti-social behaviour have in common
WHAT'S a government to do when faced with a bunch of undesirables whose guilt is difficult to prove in
a court of justice? Lock them up without a proper trial, of course.
That's how the British government is dealing with people it suspects of terrorism. Its actions, including its
shocking announcement last week of a new power of house arrest, have rightly been condemned as an
attack on civil liberties. But cases of suspected terrorism are not the only ones in which the principles of
the criminal justice system have been abandoned. The state has given itself new powers to deal with
minor offences and other crimes which are scarcely less draconian than those to deal with suspected
terrorism.
Over the past decade, anti-social behaviour--hellish neighbours, beggars, teenage gangs--has become
a big worry in Britain. Rightly or wrongly, people think that drunkards and beggars are more aggressive
these days, that teenagers are more threatening and that bad children have got worse. Explanations
vary, with some blaming 1960s liberalism and others 1980s individualism. But all agree that the normal
remedies for dealing with neighbourhood tyrants are not up to the task. The police lack the time to collect
evidence; witnesses are too scared to testify; wrongdoing is difficult to prove; and sentences are too mild.
In response to such difficulties, the government has created a new set of legal tools. Chief among them
is the anti-social behaviour order, or ASBO. This is a list of restrictions tailored to an individual offender
that can now be obtained either in a civil hearing or following a criminal conviction.
Troublemakers as young as ten years old can be barred from entering neighbourhoods, ringing
doorbells, using public transport and mobile phones or even uttering certain words for a minimum of two
years. Securing an ASBO is easy. Hearsay evidence, for instance, is admissible in court. The
consequences of stepping out of line are weighty: a maximum of five years in prison for doing something
that is not necessarily an offence in law. Not surprisingly, such a powerful weapon is popular: more than
a thousand ASBOs were handed out in the first half of 2004.
That delights MPs, who were sick of hearing stories from their constituents about local teenagers who
have terrorised the neighbourhood by blasting music, breaking windows and spitting at passers-by.
Prosecutors and the police are also pleased. Their powers to deal with low-level offences used to be
weak. Now they are so draconian that they undermine the principles on which the criminal justice system
is built.
Trust us
The power to obtain anti-social behaviour orders was granted to the police and local authorities on the
assumption that they were to be used with restraint. Just as the government promises to subject only
genuinely scary terrorists to house arrest, so the forces of law and order are supposed to aim their most
potent weapon only at the most dedicated and egregious troublemakers. Don't worry, goes the typically
British assurance: our powers may be draconian, but decency and common sense will ensure we don't
overuse them.
That's not what has happened. Obtaining an ASBO is so easy (fewer than one in 70 applications are
turned down) that they have been used to tackle a wide range of undesirable behaviour. ASBOs allow
the police to nail people for offences too minor to be criminal. Orders have been secured against
crotchety old neighbours, prostitutes, beggars and mothers who argue with their children. Some of these
people have subsequently been jailed for breaching their ASBOs: most absurdly, one man was
sentenced to four months in prison for howling like a werewolf.
32
More worryingly, ASBOs allow the police to bypass the normal procedures of criminal justice when they
suspect somebody of serious criminal activity but can't prove it. A suspected drug dealer, for instance,
can be banned from using a mobile phone--a crucial tool, in his supposed profession. When he is caught
doing so, he can be jailed.
If it's broke, fix it
It is not surprising that ASBOs are being used so frequently and so unwisely. After all, the English legal
system is founded not on the assumption that everybody will behave with decency and restraint but on
the rather more reliable conviction that most people, including the police, are capable of lying and may
do so if it is to their advantage. Faced with two competing accounts of what one person has done to
another, the courts normally give both of them a hard time. Accusations are minutely examined;
witnesses are accused of fabricating their stories. Fail to make your case and you lose.
As the police point out in defence of their enthusiasm for ASBOs, the criminal justice system does not
always work well. If the police catch villains, prosecutors sometimes don't charge them; if they charge
them, witnesses don't turn up to give evidence; if witnesses do turn up, the case is all too often
adjourned because the courts' administration is chaotic. These are, indeed, serious problems; but the
government needs to deal with them, not create new, lazy ways around them. The safeguards built into
the criminal justice system are there for a good reason. If the police think a man is a drug dealer but can't
prove it, he shouldn't go to jail, however often he uses his mobile phone.
The defence of civil liberties is rarely a vote-winner. People are, understandably, moved more easily by
violence against people than by attacks on systems. Politicians are keener to be seen to be protecting
victims than defending the rights of suspects. In a country without a written constitution, the rules that
underlie a properly-run society are particularly vulnerable to the whims of populist politicians, and
vigilance is therefore especially important.
Britons are lucky people, and complacent ones. The liberties they take for granted have evolved over a
thousand years or so. The idea that any one government should seriously undermine them seems
implausible. It isn't.
33
June 11, 2005 Guardian (UK)
2005 WLNR 9243607
By Clare Dyer Legal editor
Britain accused of creating terror fears:
Law lord says UK and US tried to bend international law with Belmarsh and Guantanamo detentions
One of Britain's most eminent judges yesterday accused the British and US governments of whipping up
public fear of terrorism, and of being determined "to bend established international law to their will and to
undermine its essential structures".
Lord Steyn, one of the longest-serving law lords in Britain's top court, the House of Lords, made the
accusation while delivering his first public comments on the lords' ruling in the Belmarsh case.
He was forced to step down last year from the panel of judges hearing the challenge to the lawfulness of
detention without trial for foreign ter rorist suspects after the government took exception to earlier
remarks he had made on the subject.
Last December the law lords ruled by 8-1 that the detention without trial of foreign nationals in Belmarsh
and Woodhill prisons and the Broadmoor high security hospital breached human rights laws.
Lord Steyn's remarks yesterday came a day after a damning report from the Council of Europe's
committee for the prevention of torture, which concluded that the treatment of some detainees "could be
considered as amounting to inhuman and degrading treatment".
He was giving the keynote address to an audience of judges and lawyers at the annual meeting in
central London of the British Institute of International and Comparative Law, whose chairman is Lord
Bingham, the senior law lord.
The session was chaired by the appeal court judge Dame Mary Arden. The audience included Lord
Brown, another law lord, Judge Luzius Wildhaber, president of the European court of human rights in
Strasbourg, Sir Franklin Berman QC, former legal adviser to the Foreign Office, and Elizabeth
Wilmshurst, the deputy Foreign Office legal adviser who resigned over the attorney general's advice that
the Iraq war was legal.
Lord Steyn hailed the Belmarsh ruling as "a great day for the law", and "a vindication of the rule of law,
ranking with historic judgments of our courts".
He added: "Nobody doubts in any way the very real risk of international terrorism. But the Belmarsh
decision came against the public fear whipped up by the governments of the United States and the
United Kingdom since September 11 2001 and their determination to bend established international law
to their will and to undermine its essential structures."
As far as he could ascertain, he said, the Belmarsh case was the first in which a government had sought,
and managed, to change the composition of the panel of law lords due to hear a particular case.
The government, represented by the attorney general, argued that Lord Steyn should not sit on the case
because, in a 2002 lecture, he had said: "In my view the suspension of article 5 of the European
convention on human rights - which prevents arbitrary detention - so that people can be locked up
without trial when there is no evidence on which they could be prosecuted is not in present
circumstances justified."
It was "a matter of speculation", he said in a printed footnote to yesterday's lecture, whether the
challenge to his right to sit on the panel for the Belmarsh case had been motivated by his 2003 lecture
Guantanamo Bay: The Legal Black Hole. That lecture, in which he attacked the treat ment of prisoners
by the US at its base in Cuba as a "monstrous failure of justice", drew headlines around the world.
34
The attorney general, Lord Goldsmith, argued in the Belmarsh case that the unelected judges had no
democratic mandate and should defer in the sphere of national security to politicians who had been
elected by the people.
Lord Steyn said Lord Bingham's judgment in the Belmarsh case, pointing out the "wholly democratic
mandate" given to judges by parliament in the Human Rights Act, had contained the "most eloquent and
magisterial rebuke" to an attorney general since Lord Denning quoted the words of Thomas Fuller: "Be
you ever so high, the law is above you."
35
August 10, 2005 New York Times
By ALAN COWELL
Britain May Create 'Special Courts' for Terror Suspects
LONDON, Aug. 9 - As Britain promises more restrictive counterterrorism laws in the aftermath of the July
bombings, a senior official raised the possibility today of "special courts" able to approve longer periods
of detention without charge for terrorism suspects.
The suggestion by Lord Falconer, who, as lord chancellor, heads the judiciary, was part of a more
stringent counterterrorism approach promised by Prime Minister Tony Blair and denounced by critics as
a major departure from Britain's traditional sense of tolerance.
But some critics took the latest announcement as a sign of confusion in government ranks about how
the promised new policies were being unveiled and implemented. Simon Hughes, a spokesman for the
Liberal Democrat opposition, called it "government by press release."
And, for some, the planned measures deepened a sense of unease that civil liberties were being
sacrificed to the dictates of national security.
"The thought of secret hearings where once again the accused will never hear the case against them fills
me with dread," said Shami Chakrabarti, director of the Liberty civil rights group.
The uncertainty about the government's intentions deepened with news that, one day after Mr. Blair
promised to move against militant Muslim clerics, Sheikh Omar Bakri Mohammed, one of the most
contentious Islamic figures, had left the country on Saturday for what he termed a vacation in Lebanon.
Mr. Blair had promised to restrain militant clerics. British newspapers have portrayed Mr. Mohammed as
an incarnation of malice, suggesting he fled the country in haste as the new restrictions closed in on him.
But the Syrian-born Mr. Mohammed said he left Britain through Heathrow Airport on Saturday without
incident and planned to return after a visit with his mother in Lebanon for up to six weeks.
"I am going to return back unless the government say we are not welcome, because my family is in the
U.K.," Mr. Bakri told the BBC in a radio interview from Lebanon. He repeated earlier statements that he
would not inform the police if he became aware of a Muslim planning an attack "because Islam forbids
me."
Mr. Blair said he planned legislation to ensure that foreign clerics fomenting violence or hatred would be
barred from Britain or deported. But the deputy prime minister, John Prescott, said: "At the moment he
has the right to come in and out. That is the circumstance at present and we have to change the
situation in this country by law."
Referring to Mr. Mohammed's vacation plans, he said: "I say enjoy your holiday. I hope it's a long one."
David Davies, the opposition spokesman on home affairs, said: "We all agree that the government
should take the necessary action to protect us all but I am concerned that instead of a clear strategy,
there is too much confusion."
Earlier, the Home Office confirmed a newspaper report that the authorities were considering "a new
court procedure which might allow for a pre-trial process." But Lord Falconer denied that the authorities
planned secret trials.
"There is no question of secret trials; there is no question of jury-less trials; there is no question of any
kind of internment," he said.
Rather, he said, the government was considering introducing pre-trial hearing at which judges with
special security clearance would consider evidence - including phone-tap evidence currently
36
inadmissible in normal courts - to determine, in part, whether suspects could be held without charge for
longer than the 14 days permitted under anti-terrorism laws.
Up until last December, British anti-terrorism laws permitted the indefinite detention of foreign nationals
without trial or charge. But the country's highest court ended the practice, saying it violated European
human rights conventions.
Police officers are now seeking ways of holding suspects for up to three months for interrogation.
"We need to debate the three months and we need to try to build a consensus around what the right
period of time is. But what is being suggested is not any form of internment, just a sensible period to
detain suspects while sensible investigation is going on," Lord Falconer said in a radio interview.
Britain used its existing counterterrorism laws to detain the main suspects accused of carrying out the
failed July 21 attacks on three subway trains and a bus, which copied the July 7 bombing that claimed
56 lives including those of four bombers.
Three suspects have been charged in court here with attempted murder and one more with conspiracy
to murder.
A fifth suspect, Hussain Osman, who is also known as Hamdi Issac, was detained in Rome on July 29.
British detectives flew to Rome and questioned him for the first time today. Britain is seeking his
extradition.
Mr. Osman has said the July 21 attackers did not intend to harm anyone, but the British police say they
could have wrought carnage on the same scale as the July 7 bombers.
The attackers on July 21 seem to have been mainly of African background while three of the suspected
bombers who died on July 7 were British citizens of Pakistani descent.
The police in Paris said today that they had arrested a Pakistani man at an airport where he was found
with five forged British passports and driver's licenses. The man, said to be resident in Italy, was arrested
at Charles de Gaulle airport on Sunday as he arrived from Lahore on his way to Britain.
Apart from bombings, British officials are also concerned whether British citizens could be attending
training camps. An Arabic television station, Al Arabiya, today broadcast what was called an Al Qaeda
video purporting to show an English-speaking militant in camouflage fatigues filmed in Afghanistan. The
authenticity of the video could not immediately be verified.
"As you bomb us, you will be bombed us," the man said. He was shown wearing a ski- mask and
carrying an AK-47 assault rifle. "Oh, people of the west, don't be fooled by the lies of Blair and Bush that
you are free nations, for the only freedom you have is the freedom to be slaves of your whims and
desires," he said, speaking in English.
37
February 25, 2005 Los Angeles Daily Journal
Forum
By Charles S. Doskow
In Debate Over Citation of Foreign Decisions, It’s Scalia vs. Breyer
The impending retirement of Chief Justice William Rehnquist has inspired a great deal of speculation
about whether either of the two true conservative associate justices presently on the court will be
promoted to succeed him. Justice Clarence Thomas has said he is not interested. Justice Antonin Scalia,
on the other hand, has been making a number of public appearances recently.
Scalia took his campaign for the office of chief justice of the United States on the road to a most unusual
forum. In a joint appearance with Justice Stephen Breyer at the American University Washington
College of Law in Washington, D.C., before an audience and televised on C-Span, he participated in
what was billed as a debate between the two.
In fact it was more vaudeville than debate, with Breyer playing Abbott to Scalia’s Costello. The
discussion, although introduced by crisp and meaningful questions, was often far from the point. Both
justices played to the audience – Scalia in his usual sardonic manner, Breyer often somewhat defensive.
The occasion was not without humor. The transcript notes 50 occasions of laughter, a rate that Abbott
and Costello themselves might have regarded as meeting professional standards.
Not that the trimmings of a debate were absent. There was a distinguished moderator, professor
Norman Dorsen of the New York University Law school, an audience of students and professors
capable of asking questions 300 words long, and a serious, though not overly important subject, stated
as “The Constitutional Relevance of Foreign Law Decisions.”
The program was prompted by the fact that, in recent opinions of the U.S. Supreme Court – two highly
significant opinions, in particular – foreign decisions have been cited in support of the court’s holding.
Scalia and conservative commentators have deplored the practice. Breyer supports it.
For an hour and half, the two exchanged their respective ideas on the issue, although much of the
discussion involved the more fundamental divide between Scalia’s originalist judicial philosophy and
Breyer’s more (dare we say) progressive views. The fact that two justices of the U.S. Supreme Court
participated in such a public and widely disseminated proceeding is remarkable in itself.
The negative aspect of the question can be summed up, perhaps oversimplified, by the view that
American courts decide American questions, and American sources of authority are adequate to that
purpose. Foreign sources are, in this view, irrelevant and possibly misleading. Scalia did say that there
are some cases in which foreign decisions could be relevant – for example, where the court is
interpreting a treaty. But not when the court is deciding a domestic issue.
Breyer’s response is that the court should seek wisdom wherever it can find it, even if that means going
to relevant authority in foreign jurisdictions. Other nations have issues similar to our own, and the views
of their distinguished jurists may cast light on solutions to our problems. He cited school vouchers as an
example, in light of the fact that France subsidizes its schools.
There is less to this disagreement than meets the eye. Breyer says flat out that he would never let
foreign authority be the deciding factor in a decision; it could never be precedent. Among the prose in
legal opinion that follows (or precedes) the ratio decedendi of a case, sources that concur with the
court’s decision, although not precedent for it, are often noted. Some may be foreign sources.
The key is that the result in the case, and its importance as precedent, do not turn on obiter dictum.
Scalia’s objections are less than earth-shaking. Whether such authorities (laughter accompanied the
mention of Zimbabwe courts as a source of wisdom) are cited or not, the result in the case is the same.
38
Two recent prominent and highly controversial cases have attracted attention to this issue, and
presumably led to this encounter. In the principal opinions in the two cases, from both of which Scalia
dissented, and both of which are anathema to judicial conservatives, the court mentioned foreign
holdings.
In Lawrence v. Texas, 539 U.S. 538 (2003), the court held that statutes criminalizing homosexual
sodomy violate substantive due process. In his opinion for the plurality, Justice Anthony Kennedy
referred to cases in the European Court of Human rights that had reached the same result.
Scalia, in dissent, was emphatic: “Constitutional entitlements do not spring into existence because some
States choose to lessen or eliminate criminal sanctions on certain behavior,” he wrote. “Much less do
they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct.
The Court’s discussion of [foreign] views (ignoring, of course, the many countries that have retained
criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since ‘this
Court … should not impose foreign moos, fads or fashion on Americans.’” Rehnquist’s dissent was
equally forceful on this issue.
Scalia’s point that any such reference is selective is not without merit. In his words, such selectivity
“invites manipulation.” The court cannot divine wisdom from one opinion without knowledge of the
context of foreign practices and jurisprudence in which the opinions were generated. And his position is
consistent with his originalist views or constitutional interpretation.
The other prominent case involves that consistent source of division on the court: capital punishment. In
Atkins v. Virginia, 536 U.S. 304 (2002), the court, reversing a 1988 precedent, held that execution of the
mentally retarded violates the Eighth Amendment’s prohibition on cruel and unusual punishment.
Kennedy referred in the opinion to a brief filed on behalf of the defendant by the European Union. Scalia,
writing for the three dissenters, refused to be influenced by such views.
But there is a more serious aspect to these cases than whether the court cites foreign opinions. The
question is whether the justices, or any of them, are in fact influenced in their thinking by prevalent
foreign (principally Western European) ideas.
The death penalty remains a highly divisive issue, and one that divides the United States from its
European counterparts. The views of four members of the court (Stevens, Souter, Ginsburg and Breyer)
approach abolition. Three justices (Rehnquist, Scalia, Thomas) rarely raise objections to its imposition,
and clearly have no philosophical concern.
In Atkins, the two swing voters, Kennedy and O’Connor, joined the four to create a six-vote majority or
the holding, citing the European authority. Both had previously joined strongly in court cases upholding
the death penalty.
Conservative commentators have noted that Kennedy and O’Connor attend meetings of jurists in
Europe, inferring that the justices have been influenced by such meetings to abandon their sound
conservative views. Europe is, of course, regarded by conservatives as one large blue state. The
ultimate subtext here is the liberal-conservative divide.
Upset at the use of foreign authority has been sufficient in Congress to cause the introduction of a bill
called the Constitution Restoration act. Its title gives it away. It would prohibit federal courts from relying
on foreign law in making their decisions.
Another provision of the proposed law, which has gone nowhere so far, would prevent the federal courts
from considering challenges to the reference to the deity in the Pledge of Allegiance.
The issue of citation to foreign authority remains a diversion. Once the court has reached its decision,
and the opinion is assigned to a justice, the rationale is that to which the court majority signs on. Many
authorities will be cited in support of the decision, and the inclusion of one that lacks contact with our
shores does not seriously influence the course of our jurisprudence.
39
As for Scalia’s campaign, taking a position in line with the conservative and isolationist views of the
administration should not impede his chance of success.
Charles S. Doskow is dean emeritus and professor of law at the University of La Verne College of Law
in Ontario and president of the Inland Empire Chapter of the Federal Bar Association.
40
January, 2005 ABA Journal
91-JAN A.B.A. J. 19
The National Pulse
By Jill Schachner Chanen
KONICHIWA, BENGOSHI!
Japan Is Set to Relax Foreign Partnership Rules, and Competition for Mergers Is on
THE JAPANESE GOVERNMENT this spring is expected to lift restrictions that have prohibited
Japanese lawyers from becoming partners with foreign lawyers. The potential changes have been
described as nothing short of seismic.
The deregulation follows the liberalization of the Japanese legal education system and a loosening of the
annual bar passage quota--all of which have many bengoshi, or Japanese lawyers, nervous.
The Japanese bar has long mirrored traditional Japanese society: tightly knit, carefully controlled and
extremely civil. Fewer than 500 lawyers are admitted to the bar each year, and most practice in
traditional fields such as litigation or before government agencies.
"The role of lawyers in this society is somewhat less ubiquitous than in the United States," says John
Steed, who heads the Tokyo office of Los Angeles-based Paul, Hastings, Janofsky & Walker. Admission
to the Japanese bar has been highly selective, he says, with only 2 percent of applicants gaining
admission to the Legal Training and Research Institute, which has long been the only method of
becoming a lawyer, judge or prosecutor.
Steed says many bengoshi fear becoming partners with foreign lawyers will taint their legal culture. "The
fears are of letting Japanese lawyers partner with these alien creatures who are proponents of lawsuits
against McDonald's for coffee being too hot," he says.
They also worry about competition from western lawyers, says L. Mark Weeks of the Tokyo office of
Orrick, Herrington & Sutcliffe.
According to Columbia University law professor Curtis Milhaupt, foreign lawyers could become members
of the Japanese bar until after World War II when the government required foreign lawyers to pass the
Japanese bar and meet the same requirements as Japanese lawyers. "It made it virtually impossible for
foreign lawyers to become qualified," says Milhaupt, who directs the school's Center for Japanese Legal
Studies.
Since then, many restrictions have been eased. But with globalization and the depressed Japanese
economy, the government has been forced to confront further relaxation of the rules.
GREATER DEMAND FOR LAWYERS
STEED SAYS MANY AMERICAN AND EUROPEAN INSTITUTIONAL investors are investing heavily in
Japan and have found few Japanese lawyers with the skills and experience to represent them. Foreign
law firms have had to set up complicated joint ventures with Japanese firms to represent clients in these
transactions.
Nonetheless, Steed says, the looming liberalization of the rules has forced some Japanese lawyers to
realize they cannot compete with foreign firms in practice areas like capital markets. "I believe that
sophisticated Japanese law firms are willing to acknowledge that deficiency and are willing to join up with
foreign firms."
The changes have set off a feeding frenzy among U.S. and European firms to hire key bengoshi. "If you
look at any given practice area, because there are so few [experienced] bengoshi, we all know who we
want," Weeks says.
41
When the foreign lawyer practice rule changes were announced, many U.S. and British firms began
jockeying for position and opened merger talks with Japanese firms. One of those dances resulted in the
breakup of the old-line, well-respected Japanese law firm Mitsui Yasuda. After the collapse, Orrick was
among the firms that hired the lawyers left behind.
Milhaupt says that breakup reverberates through Japan's legal community and might make it difficult for
Japanese lawyers to commit to foreign firms.
But Weeks disagrees. Before the merger fallout, he says, Orrick was struggling to hire Japanese lawyers.
Senior bengoshi worried about leaving colleagues behind, and younger ones worried they would not get
sufficient training at American firms. Attitudes changed after the first bengoshi joined Orrick. Now, Weeks
says, "We are getting resumés every day."
42
Country profile: France
A key player on the world stage and a country at the political heart
of Europe, France paid a high price in both economic and human
terms during the two world wars.
The years which followed saw protracted wars culminating in
independence for Algeria and most other French colonies in
Africa as well as the decolonisation of Indochina.
OVERVIEW
In the 1990s Franco-German cooperation was central to
European economic integration. Ties saw a period of some strain
at the beginning of the new millennium as a result of differences over farm subsidies and the political
future of the EU.
However, the two countries again proclaimed the bond between them in early 2003 when they
celebrated the anniversary of a postwar friendship treaty. This bond was further strengthened as they
joined with Russia to voice strong opposition to the US-led war with Iraq.
France initially expressed sympathy and support for the USA following the 11 September attacks. The
French offered military assistance in the war on terror at an early stage but as the focus shifted to
Baghdad the policy direction changed.
The country insisted at the UN that political and diplomatic measures should be used to disarm Iraq and
that force be employed only as a last resort. This stand put relations with both the USA and UK under
strain and also highlighted differences of opinion within international bodies, not least the UN and the EU.
Government in France is known for its high degree of centralization but in March 2003 parliament
approved government-backed amendments to the constitution allowing for the devolution of quite wideranging powers to the country's 22 regions and 96 departments. The amendments also provide for local
referenda to give people more say in local decisions.
Following low turnout in 2002 elections, the move was widely seen as a bid to re-engage in the political
process French people disillusioned by the ubiquitous influence of the Paris elite.
France has produced some of the continent's most influential writers and thinkers from Descartes and
Pascal in the 17th century, through Rousseau and Voltaire in the 18th, Baudelaire and Flaubert in the
19th to Sartre and Camus in the 20th. In the last two centuries it has given the art world the works of
Renoir, Monet, Cezanne, Gauguin, Matisse and Braque, to name but a few.
FACTS










Population: 60.4 million (UN, 2004)
Capital: Paris
Major language: French
Major religion: Christianity
Life expectancy: 75 years (men), 83 years (women) (UN)
Monetary unit: 1 Euro = 100 cents
Main exports: Machinery and transport equipment, agricultural products, including wine
GNI per capita: US $24,770 (World Bank, 2003)
Internet domain: .fr
International dialling code: +33
43
LEADERS
President: Jacques Chirac
Conservative Jacques Chirac, who has been president since 1995, won a second term in a landslide
victory over far-right leader Jean-Marie Le Pen on 5 May 2002.
The victory came in an election run-off following two weeks of protests against Mr Le Pen, whose
success in the first round shocked many in France and beyond. The French left, whose candidate Lionel
Jospin was edged out of the run-off by Mr Le Pen, reluctantly voted for Mr Chirac.
Mr Chirac's allies dominate the National Assembly and Senate and France has a centre-right
government, marking an end to the "cohabitation" years when Mr Chirac had to work with the Socialists.
Voters expect him to deliver on an ambitious programme of tax cuts, public sector reform and anticrime
measures. His task is not easy, especially given the budgetary constraints imposed by membership of
the eurozone. There have been mounting protests over the government's privatisation and pension
reform plans. Rising unemployment is also an issue.
By the time he reached the Elysee in 1995, Jacques Chirac had been twice prime minister, held several
other ministerial positions and had ruled Paris as mayor.
Anticorruption judges want to question him about alleged graft during his time as Paris mayor, but the
courts have ruled that he remains immune from the justice system as long as he is in power.




Prime minister: Jean-Pierre Raffarin
Foreign minister: Michel Barnier
Interior minister: Dominique de Villepin
Finance minister: Nicolas Sarkozy
MEDIA
France enjoys a free press and has more than 100 daily newspapers. Most newspapers are in private
hands and are not linked to political parties.
State-run Radio France runs services for the domestic audience, French overseas territories and foreign
audiences.
France's international broadcasters have a significant audience abroad. Radio France Internationale is
one of the world's leading international stations and its Arabic-language Radio Monte Carlo Moyen
Orient service, available on mediumwave (AM) and FM in many Middle East countries, has a large
audience in the region.
44
The international French-language channel TV5, co-financed by Belgium, Canada and Switzerland, is
available globally. However, preparations to launch an external satellite TV news channel, Canal France
International 24, have stalled. French domestic TV channels, available free-to-air via satellite, have many
viewers in Maghreb countries.
France's flagship TV station, TF1, was privatised in 1987. The growth of satellite and cable has led to a
proliferation of commercial channels. There are two competing digital satellite TV packages,
CanalSatellite and TPS, and a digital terrestrial TV service is planned.
France's long-established commercial radio stations, particularly RTL and Europe 1, still command large
audiences. They have been joined by a multiplicity of FM stations, often consolidated into successful
commercial networks such as hit music station NRJ and oldies station Nostalgie.
The press
 Le Monde - national daily
 Liberation - national daily
 Le Figaro - national daily
 Ouest France - regional daily
 L'Express - news weekly
 Le Point - news weekly
Television
 France 2 - national, public
 France 3 - national, public
 France 5 - national, public, educational
 TF1 - national, commercial
 M6 - national, commercial
 La Chaine Info - rolling news
 TV5 - international French-language TV, with programmes from French, Belgian, Swiss and
Canadian public broadcasters
 Canal Plus - national, subscription channel
Radio





Radio France - operates national and regional outlets, including flagship speech-based station
France Inter and all-news station France Info
Radio France Internationale (RFI) - international broadcaster, available via shortwave and
numerous FM relays worldwide
Europe 1 - major commercial station, news and entertainment
RTL - major commercial station, mix of speech and music programmes
NRJ - commercial, leading FM music network
News agency
 Agence France Presse
BBC News. Last Updated: Tuesday, 12 October, 2004, 15:33 GMT 16:33 UK
http://news.bbc.co.uk/1/hi/world/europe/country_profiles/998481.stm
45
Economist Intelligence Unit - ViewsWire
Monday, May 10, 2004
France: Constitution and institutions
COUNTRY BACKGROUND FROM THE ECONOMIST INTELLIGENCE UNIT
The president of the Fifth Republic
The constitution of the Fifth Republic, which was adopted by referendum on September 28th 1958 and
promulgated on October 6th 1958, took effect on January 1st 1959. The constitution provides for a
strong executive headed by the president. On October 28th 1962 an important change, providing for the
direct election of the president, was approved by voters in a referendum. Up to 1986 the effect of the
change had been to “presidentialise” the political system (that is, to strengthen the presidency). In 1986,
however, the legislative election was for the first time won by parties of a different political persuasion to
the president (“cohabitation”). Since then it has become clear that the powers of the president are much
reduced during periods of cohabitation (of which there have been three since 1986). In a move to reduce
the incidence of cohabitation, voters agreed in a referendum on September 24th 2000 to cut the
president’s term from seven years to five years.
The president appoints the prime minister and chairs the weekly Council of Ministers. The other
ministers are appointed by the president on the proposal of the prime minister. Until 1986 the president
could (and often did) change the prime minister at will. However, this has not been the case during
periods of cohabitation. Some of the president’s powers have been less directly affected by cohabitation,
including many of his powers in relation to foreign and security policy.
The prime minister
Despite the substantial powers accorded to the president, the framers of the constitution did not intend
that the prime minister should be a mere cipher. According to the constitution, it is for the government to
“determine and carry out the policy of the nation”, and for the prime minister to “direct the operation of the
government”. In practice, however, the introduction of direct presidential elections in the 1960s changed
the balance between the two offices. It is now only during periods of cohabitation between a president of
the Republic and a prime minister of opposing political persuasions that the prime minister enjoys
significant autonomy. The two most important government ministries under the Fifth Republic have
usually been those responsible for finance and for the interior. The importance of the foreign affairs
ministry has tended to vary according to the level of interest in foreign affairs displayed by the president
and the prime minister.
The legislature
France’s legislature is bicameral. The directly elected National Assembly (the lower house) is the main
chamber of parliament; it has 577 members and is elected for five years. The president has the power to
dissolve it (although not more than once in any year) and also to call it into extraordinary session. The
Senate (the upper house) is indirectly elected on a territorial basis; at present it has 321 members
serving for nine years; one-third of the Senate is renewed every three years. Parliament normally sits in
a single session over nine months from October to June. Under the constitution both the prime minister
(as head of the government) and members of parliament may propose new legislation. In practice, as in
many other countries, almost all new laws are initiated by the government.
The judiciary
Responsibility for guaranteeing the independence of the judiciary is vested in the president. He is also
responsible for the top judicial appointments, which are made through the Council of Ministers, and he
presides over and chooses one member of the Higher Council of the Judiciary, which recommends
appointments to the top judicial posts and advises on any disciplinary measures against members of the
judiciary. The president also appoints three of the nine members of the important Constitutional Council
46
and selects its president. There are three separate jurisdictions covering administrative law, civil law
(including trade law), and criminal law. The supreme court in all matters of administrative law is the
Council of State; for civil and criminal law, it is the Court of Cassation (an appeal court).
47
January 7, 2005 EIU ViewsWire
COUNTRY BRIEFING
FROM THE ECONOMIST INTELLIGENCE UNIT
France politics: Could France de-rail the EU constitution?
One of the most keenly awaited events in the EU in 2005 will undoubtedly be France's referendum on
the EU's constitution. The date of the vote has not yet been announced, but in his New Year address
France's president, Jacques Chirac, said it would take place "before the summer", which probably
means in June, earlier than had previously been suggested. While French electorate is expected to
approve the constitution, there is a risk that in the event of a low turnout opponents of the constitution
could carry the day. Given that a French "No" would in effect sink the constitutional treaty, politicians
across the EU will be closely following the debate.
The referendum is set to dominate French politics in the first half of this year. On January 11th the
National Assembly, the lower house of parliament, will begin debating changes to France's own
constitution to make it compatible with the provisions of the EU constitutional treaty. Discussions will
focus on ways to allow MPs to express their opinions on EU legislation before it is adopted, an
innovation contained in the constitution that is meant to ensure that all EU initiatives are compatible with
the principle of "subsidiarity". A separate revision to France's constitution is also to be presented, which
would make any future expansion of the EU contingent on approval in a referendum by French voters.
Both houses of the French parliament will vote on the proposals in March.
The revisions are not expected to run into any difficulties. The vast majority of MPs in the ruling Union
pour un mouvement populaire (UMP) are in favour of the EU constitution, as well as a sizeable number
of MPs from the opposition Parti socialiste (PS). The result of an internal poll held by the opposition PS in
December--when 59% of the party's membership decided to back the ratification of the EU constitution-means that the two largest parties will be campaigning in favour of the EU constitution. With most
opinion polls suggesting that around two-thirds of voters back the EU constitution, the prospects for its
ratification look good, in theory at least.
Asking one question
Nonetheless, there is a chance that things might not go so smoothly. Referendums are notoriously
unpredictable. When France held a public ballot on the Treaty on European Union (Maastricht treaty)
in 1992 it was approved with only the slimmest of margins, despite opinion polls that showed a much
larger majority in favour. A number of factors could turn this year's vote on the EU constitution into a
similarly close-run affair.
For a start, voters may be tempted to answer a different question to the one they have been asked. They
may, for example, see the referendum as a chance to sanction an unpopular government--either by
abstaining or by voting against the government's wishes. The standing of the prime minister, Jean-Pierre
Raffarin, has never really recovered from the sharp economic downturn in 2002-03, when France posted
its third-worst performance since 1945. And with the growth rate of the economy expected to slow from
2% in 2004 to 1.6% this year, there is likely to be little improvement in the labour market in 2005,
ensuring a continued slump in the government's fortunes.
The weaker the government's ability to motivate supporters of the constitution, the greater will be the
influence of the smaller parties that are adamantly opposed to the constitution. On the left, the Trotskyite
Lutte ouvrière (LO), as well as elements in the PS and the Green Party, will oppose the constitution on
the grounds that it is an "Anglo-Saxon, neo-liberal" project. On the right, the xenophobic Front national
(FN) and the traditionalist Rassemblement pour la France (RPF) will oppose it on the grounds that it
marks a further erosion of French sovereignty and identity.
Answering another
48
Perhaps the greatest danger, however, is that the ratification of the EU constitution will become bound
up with the question of Turkey's application to join the EU. The prospect of admitting such a large,
relatively poor and predominantly Muslim country into the EU, though 10-15 years in the future, is deeply
unpopular in France (around three-quarters of voters are opposed, along with many in Mr Chirac's own
UMP party). And although the two issues are quite distinct, there is a risk that opponents of the
constitution could tap into fears about the erosion of French identity and influence in the EU and
persuade them to reject the EU constitution.
A desire to keep these two issues separate probably explains why Mr Chirac decided to bring forward
the date of the referendum, having previously said it would take place in the second half of the year, and
why Turkey is having to wait until October before accession talks with the EU can begin. Although Mr
Chirac has personally backed Turkey's membership, the level of domestic opposition has also forced
him to concede that French voters will ultimately be allowed to express their view on Turkish
membership in a referendum, if and when the accession talks are completed. It remains to be seen
whether Mr Chirac's efforts to decouple the two issues will be successful. Should they fail, there is a
strong risk that French voters will reject the EU constitution.
49
May 11, 2005 Agence France Presse English Wire
Animals to get official status in French civil code
PARIS, May 11 (AFP) Animals are for the first time to get an official status of their own under France's
200 year-old civil code, in a move that reflects the country's arrival from a rural to urban society.
Justice Minister Dominique Perben this week approved the recommendation of an expert's report that
animals should be recognised to be "protected property, as living and sentient beings."
When the civil code was drawn up by Napoleon in 1804 animals were considered primarily as working
farm beasts, and they were designated merely as goods that could be owned.
The change to the civil code -- which is likely to go into law by the end of the year -- will create for
animals a third kind of property, alongside movable and immovable goods.
An alternative suggestion that animals should be accorded a new status midway between humans and
property was rejected.
"Compared to 1804, men and animals now live together in a way that is completely different from two
centuries ago," Perben said.
"What has to be borne in mind is that there are now millions and millions of living beings that accompany
man throughout his life, especially those men and women who are the most fragile, vulnerable and
lonely," he said.
There are estimated to be around 16 million domestic pets in France.
Animal rights campaigners welcomed the proposed change, which brings France in line with legislation
in the EU and other European countries.
Under the EU's proposed constitution -- to go before a referendum in France on May 29 -- states are
obliged to "pay full regard to the requirements of animal welfare."
"We have been fighting for years for this reform... which will make it possible to reinforce and respect the
status of animals," the Brigitte Bardot Foundation said in a statement.
Animals already enjoy protection under France's criminal code.
50
July 1, 2005 AGENCE FRANCE PRESSE ENGLISH WIRE
French court condemns Mauritanian torturer under 'universal competence'
NIMES, France, July 1 (AFP) - A French court Friday sentenced a Mauritanian military officer in his
absence to 10 years in prison for torture, in a ground-breaking case which saw the first application in
France of the doctrine of "universal jurisdiction".
This means that a foreigner can be charged in connection with offences of torture committed outside the
country wherever they occurred. The doctrine has been making inroads into international law ever since
the detention of Chilean former president Augusto Pinochet in London in 1998.
Ely Ould Dah, 42, was not in the court in the southern town of Nimes.
Today a major in the Mauritanian army, he is alleged to have tortured two officers in 1991 after they were
accused of taking part in a plot against President Maaouiya Ould Taya.
In Mauritania the head of an association created in 1999 by a fellow villager of Ould Dah to support him
said the trial had been a "regrettable mascarade".
Mohammed Ely Ibrahim said the court's decision was "really regrettable in a country with a great
democratic tradition."
But the head of a human rights association representing 14 local groups hailed the verdict, saying that
"impunity had to be fought by all means."
"We are delighted by this condemnation which should serve as a lesson to the whole world," said Sarr
Mamadou, who warned that torture was still a regular practice in Mauritania.
In July 1999 Ould Dah was detained in France while on a training course in the city of Montpellier. He
was granted conditional release in September and fled back to Mauritania in unclear circumstances the
following April.
He was found guilty under the 1984 New York Convention on torture which became part of French law
in 1994.
The court heard evidence from Mamadou Youssef Daigana, a 45-year-old former Mauritanian army
lieutenant who was one of five civil plaintiffs in the case. He described being arrested in a round-up and
subjected to different types of torture.
"One method was to bury the prisoner up to his neck in sand and beat him till he passed out. In the
'Jaguar' method we were suspended from a bar and hit with lengths of cable and sticks," he said.
A lawyer for the French Human Rights League, which filed a civil suit in connection with the case, said
he was "immensely satisfied" the trial had reached its conclusion.
"It is a strong signal to the Mauritanian authorities, it shows torturers are not safe anywhere."
While Ould Dah was safe enough in his own country, he could not leave it without fearing that he would
be arrested under an international warrant taken out against him in April 2000.
Defence lawyers argued that the trial had chosen the wrong target in trying to make Ould Dah into "the
example of the universal torturer".
"Western imperialism leaves me uneasy," said defence lawyer Gerard Christol, arguing that it was
"easier to attack Mauritania than China, India or the United States."
51
May 1, 2005 Institutional Investor Volume 30; Issue 5
2005 WLNR 9115391
A U.S. tradition, with a French twist (class-action lawsuits )
After lobbying French government officials and parliamentarians for four years, lawyer Gaelle Patetta is
achingly close to her goat: legislation that would permit U.S.-style class-action lawsuits in France.
As the legal director of Paris-based Union Federale des Consommateurs--Que Choisir--France's largest
consumer rights group--since 2001, Patetta has complained endlessly in the domestic press and in
countless meetings with politicians that the country's consumers and small shareholders are being
fleeced. "What happens in France is a company can be found guilty of systematic abuse, yet most
victims get nothing," says Patetta, 34, a native of the southern city of Tarbes.
She finally hit pay dirt in January, when French President Jacques Chirac came out in favor of classaction lawsuits. Last month, Patetta joined a 17-person government commission charged with drafting
the new law by October.
Has Chirac decided to take up the consumer cause? Not if you ask most French political pundits, who
believe Chirac was motivated to support the UFC--Que Choisir campaign because his main rival,
Nicolas Sarkozy, won political mileage last year by supporting the group's initiatives. Either way, the
move is likely to lend momentum to efforts to introduce similar class-action laws in the European Union.
Currently, only Britain and Sweden permit such suits. Ironically, the U.S. is moving in the opposite
direction: President George W. Bush is trying to rein in what he sees as a culture of litigation run rampant.
Some French business leaders fear the same for their country. "On our committee there are at least four
members from business and employer associations who are opposed to change," says Patetta. "But
with clear support from the president, I am optimistic we can deliver a new law with teeth."
52
July 26, 2005 Philadelphia Inquirer (PA) FEATURES MAGAZINE
2005 WLNR 11662788
By Gail Shister, Inquirer Columnist
French planning their own version of 'Criminal Intent'
Vive le Vincent! A French-produced version of Dick Wolf's Law & Order: Criminal Intent, using European
actors and original scripts, will debut in France next year, NBC announced yesterday at the TV critics'
summer meetings here.
Vive le Vincent!
A French-produced version of Dick Wolf'sLaw & Order: Criminal Intent, using European actors and
original scripts, will debut in France next year, NBC announced yesterday at the TV critics' summer
meetings here.
Reruns of CI, starring Vincent D'Onofrio as quirky Detective Robert Goren, and of L&O: Special Victims
Unit are already hits in France, Wolf said in an interview. The new CI scripts will be adapted for the
Napoleonic Code.
No title yet, but it will include Paris, where the new series is set.
The deal will create yet another revenue stream for the L&O franchise, which generated a total of $1
billion in advertising last year on NBC, TNT and USA, according to Wolf.
If the French experiment succeeds, it could "prime the pump" for locally produced versions of L&O and
other shows around the world, he says.
In fact, NBC is in negotiations "in multiple territories" about various franchises, including L&O, says
Frederick Huntsberry, executive vice president, NBC Universal Television Distribution.
Of the three L&Os, CI was chosen "because Goren's character is so vivid and formidable," NBC
Universal TV czar Jeff Zucker said in an interview. "Of all the shows, he's probably the one that most
stands out. He'll be a great character to translate."
CIen français may help salve Wolf's pride, wounded by the springtime cancellation of freshman L&O:
Trial by Jury, the third spinoff of a juggernaut that began 16 seasons ago.
"I was totally blindsided, not called, canceled," says Wolf, a Penn alum. He labels the decision "a marital
disagreement. I'm not here for a two- or three-year deal. NBC and Wolf Films are in a marriage without
possibility of divorce. There can be disagreements in long-term marriages."
Zucker doesn't buy the marriage analogy, but says "nobody is more important" to NBC than Wolf. "It's
not easy to cancel a Dick Wolf show. If all our producers were as passionate as he is, we'd be in better
shape."
Look for some of the Jury cast to turn up on other L&Os. "We don't kill off characters anymore," Wolf
says. "We learned our lesson from Jill Hennessy," whose ADA Claire Kincaid died in a car wreck in '96.
NBC has ordered a new Wolf drama for midseason, about a group of young assistant district attorneys
in Manhattan. (The average age of the real ADA office there is 28, he says.) It will be more characterdriven than L&O, but like those series will be produced in self-contained episodes.
The show will be shot partially on the Jury set, which NBC will keep standing for a year, Wolf says. No
cast or title yet, but the new handle won't include L&O. "I have mixed feelings about that," he adds.
53
Law & Order is entering its 16th season; SVU its seventh, and CI its fifth. Total episodes: a mindboggling 600 and counting. This season, D'Onofrio will alternate episodes with Chris Noth, reprising his
L&O Detective Mike Logan.
D'Onofrio loves the setup. SVU'sMariska Hargitay says she's jealous. "I miss having a life, but I manage
to squeeze one in."
On another note, Wolf and Zucker say they have no problem with Fred Thompson, who plays D.A.
Arthur Branch on all three L&Os, squiring Supreme Court nominee John G. Roberts Jr. around Capitol
Hill.
Thompson, a former U.S. senator and longtime Republican, "is an actor and a citizen, and I admire his
willingness to do both roles," Zucker says.
54
The Economist Dec 16th 2004 | PARIS
Big Dominique and his struggle against the Islamists
The French interior minister makes the case for being tough on Muslim extremists
IN AMERICAN minds, Dominique de Villepin once embodied French pacifist defiance and soft-onterrorism Old Europe. As foreign minister, he was the most passionate opponent at the United Nations of
the use of force in Iraq. So it may surprise many to find that, as France's interior minister, Mr de Villepin
(in the middle of the picture above) is now waging a hardline battle on terror in France, with zero
tolerance of radical Islam.
Liberal multiculturalists have long said that secular France is too intolerant to religious minorities,
especially its 5m Muslims (the biggest Muslim population in Europe). It is accused of being too rigid in
denying religious freedoms in public institutions, and too suspicious of goings-on in mosques. The
French ban on the headscarf in state schools was widely condemned in America, Britain and the
Netherlands. But since the grisly murder last month of Theo van Gogh, a Dutch film director, more
Europeans have asked if there might be a link between laisser-faire multiculturalism and the
radicalisation of Muslims. Could excessive tolerance be making it too easy for extremist Islam to
organise?
Although he is careful not to criticise multiculturalism in the rest of Europe, Mr de Villepin is unapologetic
about France's tough regime. “Terrorists are opportunists,” he says, sitting in his office beside a bust of
Napoleon. “They strike where it is easiest.” In his view, Muslim extremism requires good policing and
robust laws, but also a strategy. “We need a strong policy to combat radical Islam. It is used as a
breeding-ground for terrorism. We cannot afford not to watch them very closely.”
There are two elements to Mr de Villepin's approach. The first is a rigid, even repressive, intolerance of
incitement to violence. When he tried to expel Abdelkader Bouziane, an Algerian cleric in Lyons, who
advocated the stoning of women, the decision was overturned by the courts. So Mr de Villepin changed
the law—and the imam was on the next plane home. Religious-hatred laws were also behind this week's
court decision to ban al-Manar, a Lebanese satellite-television station close to Hizbullah, Lebanon's
Iranian-inspired “Party of God”.
To help his campaign, Mr de Villepin has an intelligence network, with Arabic expertise and a legal
arsenal, that long predates September 11th 2001. France has two domestic intelligence agencies: the
Renseignements Généraux, an intelligence-gathering service, and the Direction de la Surveillance du
Territoire, a counter-intelligence agency. Agents keep a close eye on prayer places in France, which
number 1,685, according to the RG. Of these, about 50 are considered “radical”. Mr Bouziane had long
55
been tracked. Mr de Villepin is now setting up special cells around the country to monitor fast-food joints,
halal butchers, specialist bookshops and telephone call-centres, any of which might be fronts or
recruitment points. A pilot effort in Paris has led to the expulsion of 14 extremists, including seven imams.
The French criminal-justice system makes a crackdown easy. Terrorist suspects can be held for 96
hours without charge. Under a 1996 law, they can be detained by a judge for “association with
wrongdoers involved in a terrorist enterprise”: this covers not just conspirators, but those in their circle.
Since January 2004, several members of the Benchellali family have been held on such charges, linked
to plans for a chemical bomb. All four French suspects released from Guantánamo Bay, one of them a
Benchellali, were detained on their return home. “We have a particularly repressive criminal-justice
regime,” deplores one of their lawyers. As many as 35% of prisoners in France are in “provisional
detention” awaiting trial, a process that can take years.
In other countries, this might be a subject for liberal hand-wringing. But the detention of the Guantánamo
Bay four provoked little comment in France. Most people in France see it as a price to pay to protect
liberal society. “We must never find ourselves in a position of powerlessness,” insists Mr de Villepin.
“Democratic governments must ensure order, as this is the guarantee of our freedoms.” Far from
prompting debate on the balance between civil liberties and security, Mr de Villepin's approach has been
applauded—and his popularity has risen, encouraging those who see him as the next prime minister.
The second part of Mr de Villepin's struggle is one that Libération, a left-leaning newspaper, calls
“drowning the beards”. His predecessor as interior minister, Nicolas Sarkozy, argued that radical Islam
was best tamed by co-option. But Mr de Villepin wants to dilute this by promoting moderates. Mr
Sarkozy created the French Council of the Muslim Faith, an official body now dominated by hardliners.
Mr de Villepin prefers a “Muslim foundation”, in which mosque-based representatives are balanced by
secular or moderate Muslims. Since less than 10% of French Muslims are practising, he argues, their
representatives should reflect this. His foundation would aim to bring openness to the financing of
mosques, much of which comes from Arabs abroad.
Mr de Villepin, a romantic neo-Gaullist, biographer of Napoleon and poetic defender of his country's
gloire, is also keen to reaffirm French values. To this end, he wants France to train imams. Of the
country's 1,200 or so Muslim clerics, he says, three-quarters are not French, and a third do not even
speak French. From next September he plans to offer courses to imams in theology and “secularism”:
law, civics and French institutions, as well as the French language. And Mr de Villepin hopes to supply
more Muslim chaplains to prisons. It is illegal to collect official figures on religion in France, but it is
reckoned that a majority of the country's prison population is Muslim. Recruitment to radical Islam behind
bars is a growing worry.
Plenty of questions about these plans remain. Why would foreign financiers, from Saudi Arabia or
elsewhere, pay cheques via a foundation? Since courses for imams cannot be compulsory, what is the
incentive for them to learn about France's republican code? Given the popularity of Arabic classes at
mosques, would imams want to learn French?
Nor does it follow that countries that favour multiculturalism, such as Britain, cannot also support rigorous
policing and counter-intelligence work against radical Islam. France may have less compunction about
asserting its values, but the trade-off between security and liberty is still a challenge. Yet at a time when
all of Europe is grappling with Islamic radicalism, Mr de Villepin's approach will be studied with interest—
even, perhaps, in America.
56
June 27, 2005 AGENCE FRANCE PRESSE ENGLISH WIRE
French finance ministry, Rhodia raided in corporate accounts probe
PARIS, June 27 (AFP) - An investigating magistrate accompanied by police raided the French finance
ministry on Monday, and a source told AFP that the probe concerned chemical company Rhodia when
the minister was a board member.
Rhodia said later that its headquarters in Paris had also been raided, with the operating continuing early
in the afternoon. "It is in the logical pursuit of complaints about Rhodia in the past," the company said.
The press service at the ministry said: "An investigating magistrate with police officials is in the premises
at Bercy (the building housing the ministry). They are being given the reception they merit."
Since Breton was travelling, they had been met by the head of his private office, the press service said.
The ministry did not specify the reason for the visit and declined to comment on whether or not it might
be linked to investigations into the accounts of Rhodia, opened in October following a complaint to the
prosecutor.
Economy and Finance Minister Thierry Breton, who took office at the end of February, was a member of
the board of the company from 1999 to 2002, the period covered by the probe.
However, Breton has strongly denied any knowledge of wrongdoing, asserting that he had been
responsible for upgrading audit procedures in the company.
At the time the probe into Rhodia came to light, in March, one source close to the matter told AFP that
the French financial markets authority AMF had completed its own investigation into Rhodia's accounts
at the end of 2002, but stressed that it did not concern Breton.
Breton said then that the separate judicial investigation followed "a complaint about a year or a year and
a half ago against Rhodia by two shareholders who felt they had gotten a bad deal".
One of the two was French banker Edouard Stern who was murdered in his home in Geneva on
February 28 in a crime apparently arising from circumstances in his private life.
In another twist in April, the other plaintiff, a French businessman Hughes de Lasteyrie was investigated
for alleged blackmail under a complaint laid by treasury and economic policy director at the ministry,
Xavier Musca.
Lasteyrie objected that the investigation was an attempt to smear him and discourage him from seeking
damages over losses he had made on investing in Rhodia.
The company is recovering from near bankruptcy in 2004.
Breton forewent a severance package of 2.35 million euros to leave his previous post as head of France
Telecom at the request of the government to replace the previous finance minister who had been forced
out of office after only three months amid controversy over lavish rent arrangements for his family.
Breton is the fourth economy and finance minister to head the pivotal finance ministry since the centreright came to power in 2002.
He was appointed amid an extremely difficult period for France regarding budget deficits, debt, weak
growth and a need for economic reforms.
Publicity about the probe at the ministry also falls particularly badly for the government, caught up in a
crisis over its economic and social policies in a European context and, separately, because of two highprofile court cases over alleged corruption involving former party personalities.
57
The office of the Paris prosecutor opened an inquiry into Rhodia's accounts following a complaint
alleging inexact accounting between 1999 and 2002.
The prosecutor opened the investigation on alleged evidence of "the presentation of inexact accounts,
diffusion of false and deceptive information on the situation of an issuer quoted on a regulated market,
insider trading and benefiting from insider trading".
Questioned about the probe last March, Breton denied any knowledge of wrongdoing at Rhodia while he
was a member of its board of directors.
He told AFP: "During this period, nothing that would have shocked my rigor, my ethics or my deontology
was brought to my attention, and if some things happened after, I had no knowledge of them."
58
Tuesday, December 14, 2004 The Jerusalem Post
ELAINE GANLEY, AP
France orders Al-Manar off the air
PARIS - France's highest administrative body on Monday ordered the TV station of Lebanon's militant
Hizbullah group off French airwaves within 48 hours for broadcasting hateful content in some shows and
posing risks to public order. The Council of State ordered Paris-based satellite operator Eutelsat to stop
broadcasting Al-Manar within two days or pay a fine of 5,000 per day.
The council said the station broadcast some programs that were "openly contrary" to a French law
banning incitement to hate, a situation that poses "risks to maintaining public order," it said in a decision
made available to reporters.
A December 2 broadcast accused Israel of crimes against humanity. A November 23 program quoted
someone described as an expert on Zionist affairs warning of "Zionist attempts" to transmit dangerous
diseases such as AIDS to Arab countries.
However, the council left open the possibility that Al-Manar could keep operating if the company that airs
the station, the Lebanese Communication Group, shows itself ready to modify its programs to conform
with French law.
The decision risks a tit-for-tat move against France. Last Friday, Lebanese media officials warned that
any decision to suspend or cancel Al-Manar could force Lebanese officials to take action against French
stations.
Last Thursday, Lebanese Information Minister Elie Ferzli said his country "would not remain silent" if
French measures are taken against Al-Manar.
France's High Audiovisual Council, or CSA, said in November that Al-Manar had violated its contractual
agreement as well as the French law banning media from inciting hatred or violence for reasons of
religion or nationality.
Weeks before, the CSA had reached an accord with Al- Manar that allowed the channel to broadcast in
France despite appeals from Jewish groups that it was putting out anti-Semitic content.
March 7, 2005 World News Connection (Newswire)
France: court rejects Eutelsat request to lift ban on Sahar 1 TV
Paris, 4 March: In a summary judgement, the Council of State today [France's highest administrative
court] rejected the request made by satellite operator Eutelsat to suspend the demand by the Higher
Broadcasting Council (CSA) that it cease broadcasting the Iranian channel Sahar 1, according to the
ruling the Council of State emitted today.
"The CSA's demands will be met within the specified time," a Eutelsat spokesman told AFP.
Noticing that Sahar 1 had broadcast "programmes which were antisemitic and incited to racial hatred",
the CSA had ordered Eutelsat on 10 February to cease the broadcast of this channel within one month,
says the Council of State.
"The order is specifically aimed at starting a procedure during which the operator in question is required
to explain itself," stressed the council.
Sahar 1 is not officially sanctioned by the CSA.
59
1/17/04 Agence France Presse
2004 WL 63699235
Religious tolerance or tolerating religion?
France's move to ban Islamic headscarves from state schools has prompted strong and mixed
reaction. It also highlights fundamental differences of approach to religious tolerance between
France and Britain. Ingrid Bazinet reports.
As a proposed ban on Muslim headscarves in schools provokes both outrage and approbation in France,
education professionals in Britain say their country's tradition of religious tolerance is based on "radically
different" values which can't simply be transferred to the other side of the English Channel.
President Jacques Chirac let it be known in December that France would
move towards a ban on "conspicuous religious insignia" - a category that
runs the gamet from Muslim headscarves to large Christian crucifixes - from
state classrooms.
The ban was recommended by an advisory committee, on grounds that
French schools are strictly secular, and Chirac indicated that he'd like to see
it written into law by the start of the next academic year.
In France a Muslim
headscarf "is seen as a
demonstration of religion."
But in Britain, where multiculturalism is officially embraced, such symbols of
a student's religious heritage are not taboo, and diversity is encouraged.
"It's a French issue because the church and the state are separated quite
distinctly," said Paul Harwood, head teacher at Bishopford Community
School in Morden, south London.
Therefore, the wearing of a Muslim headscarf - or a crucifix, or a Jewish kippa, or a Sikh turban - "is seen
as a demonstration of religion," said Harwood, who's been discussing the issue with French colleagues
as part of a cross-Channel educational exchange programme.
"We don't necessarily separate religion because we think it's part of people's culture," he said. "If it's
important for them, it should be valued."
A wider illustration of this consideration is that Sikhs - whose faith
requires men to wear turbans and forbids followers from cutting
their hair - are exempted by British law from the general public
requirement to wear helmets on motorcycles.
The Education Act, in effect since 1944, obliges schools in
England and Wales - Scotland runs its own education system - to
provide religious teaching and Christian prayer.
Sikhs are exempted by British law from
wearing helmets on motorcycles.
But in recent years, such classes have often been replaced with
more general teaching of the traditions of different faiths, reflecting
the post-war influx of immigrants from across the British Empire.
Another difference is that, while the French constitution draws a
clear line between church and state, there's no such distinction in Britain.
Indeed, Queen Elizabeth II is both head of state and head of the Church of England - although it's the
prime minister and the archbishop of Canterbury who wield real authority over politics and the Anglican
faith.
60
"The British have a radically different idea of secularism; it's a concept that doesn't have any real
meaning in the United Kingdom," said Philippe Fatras, a school inspector from the well-heeled Paris
suburb of Versailles.
"Our system is founded on the Enlightenment philosophy of an
integrating nation," Fatras said. "To belong to the nation, you have
to stick to its values."
In Britain, different cultures "can live very comfortably in their own
little world, their own sphere, side by side, without bothering each
other," he said.
"There is not a great deal to be transferred, because central to our
history is the republican principle of schooling," Fatras said.
In Britain religious symbols are not
taboo and diversity is encouraged.
"It seems that this big issue (of headscarves) takes the place of any
discussion about developing culture understanding, and that's a
very complex area," said Peter Walker, headteacher of Park View
Academy, a comprehensive high school in north London.
He recalled a similar debate taking place in Britain more than 20 years
ago - a debate that was ultimately resolved by what Walker called a
"celebration" of cultural differences.
"We will get there," said Fatras, who regrets the ignorance of some
French pupils on religious issues.
Such ignorance, he said, "leads to a total lack of understanding - and
like all ignorance, you fall into stereotypes, simplification and imbecilic
reactions."
In France "to belong to the
nation, you have to stick to its
values."
September 8, 2004 AGENCE FRANCE PRESSE ENGLISH WIRE
Some 100 French girls wearing headscarves to school despite ban: minister
PARIS, Sept 8 (AFP) - About 100 French Muslim girls have refused to take off their headscarves in
school despite a government ban on "conspicuous" religious insignia in state schools, Education Minister
Francois Fillon said Wednesday.
"There are about 100, between 100 and 120" girls who have refused to heed the controversial
"secularity law" that took effect last week with the start of the academic year, Fillon told Europe 1 radio.
But the minister expressed confidence that school administrators would "convince nearly all of these
young girls" to take off their headscarves in the coming days.
Some 12 million pupils were obliged to heed the new law as they went back to school on Thursday, but
expected confrontations over the ban were overshadowed by nationwide concern over the fate of two
journalists kidnapped in Iraq.
The Islamic militants who abducted Radio France correspondent Christian Chesnot and Le Figaro
reporter Georges Malbrunot on August 20 demanded that Paris rescind the ban on headscarves in state
schools.
France refused to back down, bringing the law -- aimed at reinforcing the separation of religion and state
-- into effect as planned.
61
Though the law does not single out any specific faith -- Jewish skullcaps, large Christian crosses and
Sikh turbans are banned along with headscarves -- many in France's five-million-strong Muslim
community believe the hijab worn by teenage girls is the main target.
Fillon on Wednesday noted that there had been one incident involving a student wearing a large cross
since the school year began.
Around 30 members of France's small Sikh community have been refused access to school because of
their head coverings, although a community leader said none of the boys had been formally expelled,
and negotiations were ongoing.
On Wednesday, French President Jacques Chirac hailed the "spirit and responsibility and respect" that
reigned on the first day of school, in comments made public by government spokesman Jean-Francois
Cope.
Fillon noted the Muslim community's support in the wake of the hostage-taking in Iraq, saying that
integration in France "is working better than people say."
But in eastern France, one 12-year-old girl barred from two public schools because of her headscarf had
decided to attend classes in Belgium this year, according to her lawyer.
"As she is unable to enroll at an establishment that allows for the free expression of one's religious
beliefs, she was forced to leave the country in order to attend a more flexible Belgian school," lawyer
Nohra Boukara said.
The young girl, identified only as Hilal, will be a boarder at the school, Boukara said.
62
April 14, 2005 International Herald Tribune
2005 WLNR 5811162
By Alan Riding
For Algerians in France, what future memories? Entr'acte
PARIS – In ''Globalia,'' a futuristic novel published in France last year, Jean-Christophe Rufin portrays a
world government that has abolished history to insure peace among its citizens. Logical, no? Memory is
all too often a font of rancor, dissension and eventual conflict. So, Globalia's rulers conclude, best bury
the past and live only in the present. Things might be easier if this could happen. But just as Europe
remains scarred by the Nazi nightmare, the Ottoman Empire still haunts the Balkans. While the partition
of India continues to plague the subcontinent, Asian resentment over Japan's war crimes simmers on.
Mexico has not forgotten that the United States took half its territory 150 years ago. And we haven't even
mentioned the Middle East.
In France, the past is now reappearing in a new kind of mirror game. Memories of French colonialism
are being recovered, not by those who lived through it in Africa or Asia, but by their children and
grandchildren who migrated to France or were born here. The slights of this colonial past have become
weapons in the battles of a European present. Of course, this could be just the ol' chickens coming
home to roost: France exploited its colonies and is now paying the price. But the implications are more
far-reaching: Whether immigrants and their offspring become fully integrated here may depend in part on
how this past is tackled. In that sense, offenses committed decades ago may matter less than how they
are remembered today.
Algeria is at the center of this reflection for France just as it could easily be Congo for Belgium, India for
Britain and Angola for Portugal. After an insurgent war forced France to give Algeria its independence in
1962, millions of French expats the so-called pieds noirs fled to France and, with them, some 60,000
harkis, the name given to Algerians who fought with the French. Harkis who stayed behind were
considered traitors and slaughtered by Algeria's new rulers, but those in France hardly fared well: They
were placed in camps and largely forgotten.
Fast forward to Feb. 23 this year, when the French Parliament belatedly adopted a law giving
compensation to the harkis and their descendants, now numbering some 450,000. One article in the law
even proclaimed it a crime to insult or discriminate against the harkis. Thus, years of harki campaigning
for fair treatment finally paid off and in the process France assuaged its guilt over the ingratitude it had
long shown them. But the past does not retreat that easily.
Around the time this law was adopted, ''The Father's Name,'' a play by an Algerian exile, Messaoud
Benyoucef, was staged in Fecamp's Passage Theater in Normandy and then began touring the region.
Adapted from the final volume of a trilogy of novels, ''The Father's Name'' uses the prism of memory to
explore the identity crisis experienced by many young French of Arab origin. The problem is that the
play's central character happens to be a young harki whose rebellion against his parents leads him to
embrace Islamic fundamentalism.
For members of the largest harki association, this was an unforgivable slur. They said it suggested that,
just as older harkis were accused of betraying Algeria, a new generation of harkis was ready to betray
France. Further, they complained, it implied that harkis carried betrayal in their genes. Since then,
groups of harkis have been demonstrating outside theaters presenting the play to demand both its
cancellation and the withdrawal of the original novel from circulation.
When they were rebuffed, the harkis' leader, Mohamed Haddouche, then took Benyoucef, his publisher
and the play's director to court for defamation under the new law adopted Feb. 23. The case will be
heard next month. Benyoucef himself is hardly an Algerian nationalist he fled his country's civil war in
1995 but the context of this dispute is 1962, not today. As one harki group noted, ''It is totally intolerable
for an Algerian author to come to France to insult harkis who were faithful to France.'' In response,
Fecamp's theater noted that the trilogy ''is dedicated to the memory and history that France and Algeria
share.''
63
But whose memory and history? Some French conservatives, embarrassed by recent books detailing
torture carried out by the French Army during the Algerian war, have concluded it is not too late to alter
the record. Thus, into the Feb. 23 law compensating the harkis, rightist legislators inserted an
extraordinary article requiring the national school curriculum to recognize the ''positive role'' of the French
colonialism and presumably to forget its abuses. Today, however, many children and grandchildren of
this colonialism French-born youths of Arab and African extraction view the consequences of this role as
anything but positive. And in February, a group of them calling themselves ''The Natives of the Republic''
issued a statement in the form of an open invitation to a so-called postcolonial anticolonialism assembly
in Paris on Saturday, to be followed by a street march May 8.
Claiming that minorities here are still colonized, the statement accused today's France of driving these
new ''natives'' to the margins of society; of condoning police brutality; of manipulating an officially
sanctioned Islamic council; of adopting a ''discriminatory, sexist and racist'' law banning Muslim
schoolgirls from wearing head scarves; and of treating Muslims as ''fifth columnists'' of extremism.
Further, while the statement's authors never knew traditional colonialism, by describing themselves as
''descendants of slaves and African deportees, children of colonial subjects and immigrants,'' they
claimed to be its victims.
''We're not interested in the past for the past's sake,'' Houria Bouteldja, the group's spokeswoman,
explained. ''We're interested in the past only inasmuch as it illuminates the present.'' Their laments have
so far stirred little interest here. While most of the French also never knew traditional colonialism, their
general view is that migrants and their children should adapt to today's Europe and forget about the past.
Yet for these self-proclaimed ''natives,'' the collective memory offers them the only explanation as to why
they are here and why they feel unwelcome. In fact, the slights of today are already shaping tomorrow's
memory.
** E-mail: pagetwo@iht.com Tomorrow: Richard Bernstein looks deeply into the reason Berliners don't
clean up after their dogs.
64
Dow Jones International News
By Pierre Briancon, pierre.briancon@dowjones.com
Wdnesday, January 14, 2004
FOCUS: French Courts Increasingly Under US Spell
PARIS (Dow Jones)--The U.S. Securities and Exchange Commission and New York State Attorney
General Elliot Spitzer are becoming major players in French courts. With the French judiciary
increasingly drawn into corporate disputes and shareholders suits, it often finds it has to rely on
American procedures and findings to make its own decisions.
Several lawyers say French judges now believe they have to be as aggressive as their U.S. counterparts,
which have clamped down on the corporate excesses of the late-1990s. At the same time, the
investment border between the two countries has become blurred, with some of France's biggest
corporations co-listed in New York and major U.S. funds big shareholders in the Paris bourse.
Earlier this week, the Paris Commercial Court ruled that reports from a Morgan Stanley analyst were
biased against Louis Vuitton Moet Hennessy (12101.FR) and ordered the bank to pay at least €30
million in damages to the luxury goods firm.
Morgan Stanley said it would appeal the verdict.
The court largely based its surprise decision on the fact that "Morgan Stanley's structure did not strictly
separate its investment services from its financial analysis services."
The lack of a Chinese wall was made abundantly clear by the SEC and the New York attorney general
in a case that resulted in Morgan Stanley paying a $75 million fine.
"The [French] case could not have gone as far as it did without the American one," said prominent
lawyer Jean-Francois Prat of law firm Bredin Prat et Associes. "Under French law, plaintiffs cannot go
look for evidence in a company's books like they can in the States."
The U.S. influence also was evident in the damages awarded to LVMH - damages are rare in French
civil cases.
"Moral prejudice traditionally wasn't worth much in French courts," said Pascal Wilhelm of Wilhelm et
Associes. "With those €30 million, we're very close to the punitive damages notion of the American legal
system".
Wilhelm hailed the verdict as a landmark in French law, but cautioned that the Court of Appeals's
decision, not expected for a few months, would truly matter.
Commercial courts are composed of judges elected by businessmen whereas professional judges only
sit on the Court of Appeals.
In another case late last year, Vivendi Universal (V) and its former Chairman Jean-Marie Messier agreed
to pay $51 million in fines to the SEC to settle a civil fraud complaint by the U.S. regulator.
Messier at the same time agreed to forego a €21 million severance package he said he was due by
Vivendi.
"In this case you basically saw a case involving a French company and its former French CEO settled by
U.S. authorities under U.S. law because the French watchdog and judges were too slow," a senior
French government official said.
65
French courts and markets regulator Autorite des Marches Financiers still haven't formally ruled on the
Vivendi-Messier case.
Vivendi shares trade in the U.S. and Paris.
Jean-Michel Darrois, one of France's leading corporate lawyers, said French judges should be careful
before "getting their inspiration" from the U.S.
"The plea-bargain system that is often used in the U.S. means there is no real final decision on who's
right or not, so it doesn't resolve conflicts and doesn't pacify relations between the parties," said Darrois,
whose firm frequently represents blue-chip companies like Pinault Printemps Redoute (12148.FR) or
Vivendi Universal.
Meanwhile, some French lawyers welcome a more uniform approach to corporate legal conflicts.
With international corporations involved in a complex realm of legal and financial contracts, they caution
that too big a difference in judicial decisions could generate what they called "court shopping" by
companies seeking chambers that are considered more favorable to their case.
"A bit of cross-border legal coherence is still needed", a lawyer said.
66
The Practitioner International Law
Los Angeles Daily Journal
Tuesday, September 23, 1997, Page 7
By Calvin D. Peeler and Michael J. Bazyler
French Twist
Legal Ramifications of a Fatal Crash
The behavior of the media that allegedly chased Princess Diana to her death is now being scrutinized by
the French criminal-justice system. French police arrested and then temporarily released six paparazzi
and a motorcycle driver who are suspected of following her vehicle.
Two French magistrates must now decide whether there is sufficient evidence to prosecute them, along
with three other photographers, for their role in the tragic death of the princess, her companion Dodi
Fayed and their chauffeur Henri Paul.
The justice system that these paparazzi face in France differs significantly from criminal justice in the
United States. This difference begins with the photographer’s detention, or “garde à vue,” which
translates to “keep close watch.” The detention is done by the French judicial police, an institution not
found in the United States. The judicial police (“police judiciare”) has wide-ranging investigatory powers.
It can detain a suspect (or even a witness to a crime) up to 48 hours. During such time, the judicial police
are allowed to elicit information from a suspect that would be constitutionally impermissible in the United
States.
Even though criminal defendants in France theoretically have the right to remain silent, they customarily
do not exercise that right, since their silence can be used against them in court. An underlying
assumption in French law is that a suspect who proclaims his innocence will want to testify to the judicial
police to remove the cloud of suspicion hanging over him.
The questioning during a “garde à vue” detention is usually done without presence of counsel. The
French believe that a detainee is more likely to give spontaneous declarations if detained for a limited
period of time without legal assistance. Therefore, French law precludes a right to a lawyer until after the
first 20 hours of detention. If the crimes alleged are serious enough, the law permits the judicial police to
exclude a lawyer for as long as the first 36 hours of the “garde à vue” detention.
The French Code of Criminal Procedure does provide some protection during the “garde à vue.” It
defines how an interrogation is to be conducted, including the time and length of the questions, and
requires the police to document all aspects of the interrogation so that it can later be reviewed for
irregularities. A detainee can make one telephone call, a right well-known in the United States. Even that
right, however, can be suspended if the police or prosecutors believe that the circumstances so dictate.
It is not known what questions were posed to and answered by the paparazzi during their “garde à vue.”
But all information obtained during their detention and all other evidence, including testimony from
witnesses and physical evidence, have been turned over to an investigative judge. This judge, called a
“juge d’instruction,” will decide whether to proceed with criminal prosecutions. Regarding Princess
Diana’s fatal car crash, the investigative judge has informed the suspects that they are under
investigation for both “involuntary homicide,” the French equivalent to involuntary manslaughter, and for
failing to aid the accident victims inside the vehicle.
Unlike in the United States, where prosecutors and defense lawyers conduct investigations and collect
and exchange evidence for trial, in France it is the investigative judge who alone investigates the facts to
search for the truth of the matter – and supposedly without prejudice to any party.
If the paparazzi under investigation chased Princess Diana’s vehicle, under French law they have
committed involuntary manslaughter. Even if it turns out that the deceased driver of Diana’s vehicle
contributed to the accident by either being intoxicated or driving at an excessive speed, the pursuers are
still criminally responsible if their pursuit was a contributing cause of the accident.
67
The French judges also have the right, during the independent investigation stage, to determine if the
evidence warrants charging the paparazzi with additional crimes. French law criminalize serious
invasions of privacy and prescribes imprisonment or monetary fines for violations. The French pride
themselves on having the greatest legal protection for privacy interests, particularly from the paparazzi.
French laws describing criminal invasions of privacy, however, are reportedly vague and ill-defined. For
this reason, the independent investigative judges will need to determine whether the photographers
chasing Princess Diana criminally crossed that ill-defined line and should be charged with criminal
invasion of privacy.
Other criminal liability comes from the paparazzi’s allegedly violation of Frances “Good Samaritan” law,
the other crime for which the paparazzi have been placed under formal suspicion by the investigating
judge.
The French civil code – unlike any law in the United States – makes it criminal for anyone to fail to come
to the aid of a person in peril or to call for help. The French traffic code specifically imposes such a duty
for anyone involved in a road accident. Also, mere failure to communicate to the police one’s
involvement is a crime, akin to the United States’ “hit-and-run” laws. The French traffic code, therefore,
implicates not only those photographers charged with manslaughter, but also any other paparazzi who
fled the crash scene before the police took charge.
Finally, there is the civil liability of the paparazzi and their employers. In France, criminal and civil lawsuits
can be prosecuted at the same time and by the same court and jury. It appears that the civil liability of
the paparazzi and their bosses will be increased or diminished, depending on whether they are found to
be criminally liable. As in the United States, the French standards of proof for civil damages are
substantially lower than for criminal liability, and a defendant can be found not criminally guilty but still
civilly liable.
However, French judges and juries do not issue the multimillion-dollar awards so common in United
States’ wrongful-death cases. Given the parties and circumstances involved, however, this French case
may result in a civil mega-verdict against the defendants. Already, Princess Diana’s family has filed
notice of their civil claim in France.
How long will the criminal and civil processes take? The French investigative judge has complete
discretion on when to forward the defendants to trial or to stop the investigation because of insufficient
evidence. Investigative judges often take their time to research criminal matters. Since this will now
become one of the most famous cases in France, odds are that it will not be known whether the
paparazzi must pay until 1998.
Calvin D. Peeler and Michael J. Bazyler are international law professors at Whittier Law School in Costa
Mesa.
68
BBC News
http://news.bbc.co.uk/1/hi/world/europe/country_profiles/1047864.stm
Country profile: Germany
More than a decade on from the collapse of the Berlin Wall,
Germany has yet to come up with the economic key to coping with
its aftermath.
Once regarded as the economic giant of Europe, the German
economy has fared much less well in the new millennium.
Unemployment is high and growth is low.
OVERVIEW
The economy in the east remains particularly weak. Unemployment
is double and economic output per head not much more than half of
that in the west. The population is declining too as young people vote with their feet. Their talents go
west with them.
Racist violence is an acutely sensitive issue in Germany. The authorities are trying a range of strategies
to deal with resurgent and sometimes violent far-right wing groups.
In the 1990s Franco-German cooperation was central to European economic integration. The bond
between the two countries was again to the fore in the new millennium when their leaders voiced strong
opposition to the US-led war with Iraq.
In the immediate aftermath of the 11 September attacks, the chancellor supported Washington's
campaign against international terrorism and sent peacekeepers to Afghanistan. But Germany
subsequently voiced strong opposition to the US-led war on Iraq, insisting that weapons inspectors be
given more time to complete their mission.
As birthplace of Johann Sebastian Bach, Ludwig van Beethoven and Johannes Brahms, among others,
Germany's gift to European classical music is colossal while Goethe, Nietzsche, Kant and Brecht are
giants in the world of letters and philosophy.
FACTS
Population: 82.5 million (UN, 2005)
Capital: Berlin
Area: 357,027 sq km (137,849 sq miles)
Major language: German
Major religion: Christianity
Life expectancy: 76 years (men), 81 years (women) (UN)
Monetary unit: 1 Euro = 100 cents
Main exports: Motor vehicles, electrical machinery, metals
GNI per capita: US $25,270 (World Bank, 2005)
Internet domain: .de
International dialling code: +49
LEADERS
President: Horst Koehler
Chancellor: Gerhard Schroeder
Gerhard Schroeder, chancellor since 1998, is set to contest early
elections after his party suffered defeat in a key regional vote in
North Rhine-Westphalia in May 2005.
Economic problems have dogged
Chancellor Schroeder
69
He deliberately lost a confidence vote in parliament on 1 July to trigger the poll, and President Koehler
called a general election for September.
Mr Schroeder said the outcome of the regional poll had undermined his government's plans for social
and tax reform.
The chancellor's centrist Social Democrats and their Green allies were returned to power in September
2002, but with a sharply reduced presence in parliament. The Social Democrats suffered heavy
setbacks, and the coalition only maintained its slim majority because of a strong performance by the
Green Party.
The economic difficulties which clouded the latter part of Mr Schroeder's first period as chancellor carried
over into his second. He has faced persistent criticism for failing to do enough to tackle them.
Unemployment hovers at around 5 million. Growth is extremely low, although the news for 2004 was
slightly better than for 2003 when the economy actually shrank.
Against a backdrop of European Commission disquiet over Germany's budget deficit, Mr Schroeder has
introduced tax cutting measures as well as labour and welfare reforms perceived as harsh by many.
On Iraq, Mr Schroeder became the first German leader in 50 years publicly to oppose the US, siding
closely with France and Russia in resisting the build up to war.
Mr Schroeder was born in 1944 and was first elected to the lower house of parliament in 1980.
Foreign minister: Joschka Fischer
Interior minister: Otto Schily
Finance minister: Hans Eichel
MEDIA
Germany's competitive television market is the largest in Europe, with some 34 million TV households.
The many regional and national public broadcasters - organised in line with the federal political structure
- vie for audiences with powerful commercial operators.
Each of the country's 16 regions regulates its own private and public broadcasting, and operates public
TV and radio services.
Around 90% of German households have cable or satellite TV, and viewers enjoy a comprehensive mix
of some 30 free-to-air public and commercial channels. This has acted as a brake on the development of
pay-TV services.
Germany is home to some of the world's largest media
conglomerates, including Bertelsmann and the publisher Axel
Springer. Kirch Media, the operator of some of Germany's top
free-to-air TV networks, collapsed in 2002. Its assets were
bought by a group of investors led by a US billionnaire.
Germany is pressing ahead with the development of digital radio
and TV and aims to switch off its analogue transmitters in 2010.
Public TV broadcasters ZDF and ARD offer a range of digitalonly channels.
Major commercial TV stations use
cable and satellite to reach viewers
While the press and broadcasters are free and independent, the
display of swastikas and statements endorsing Nazism are illegal.
Although there are several national newspapers, the press
market is strongest at a regional level, with more than 300 titles.
70
The press









Frankfurter Allgemeine Zeitung - prestigious daily
Sueddeutsche Zeitung - Munich-based daily
Die Welt - Berlin-based broadsheet
Frankfurter Rundschau - Frankfurt am Main-based daily
Handelsblatt - Duesseldorf, financial daily
Focus - weekly news magazine
Der Spiegel - weekly news magazine
Die Zeit - weekly
Bild - mass-circulation tabloid
Television







Radio



ARD - organisation of regional public broadcasters; operates Das Erste, the main national
public TV channel
ZDF - operates second national public TV channel
n-tv - commercial, rolling-news, part-owned by CNN
N24 - commercial, rolling news
RTL - major commercial broadcaster, operates entertainment channels
Deutsche Welle TV - Germany's international TV service, in German, English, Spanish
Premiere - pay-TV operator
ARD - umbrella organisation of public radio services, including those of individual regions
Deutschlandradio - operates national public stations Deutschlandfunk and Deutschlandradio
Kultur, both broadcasting news and current affairs and cultural programmes
Deutsche Welle - international radio broadcaster, services in many languages
News agency

dpa
71
May 23, 2005 Economist Intelligence Unit - ViewsWire
FROM THE ECONOMIST INTELLIGENCE UNIT - COUNTRY BACKGROUND
Germany: Constitution and institutions
The Basic Law
The Basic Law or constitution of what was West Germany was drafted between late 1948 and early
1949. Two consistent themes permeate the document: the effort to construct legal obstacles to ensure
as far as possible that totalitarianism and Nazism can never rise again, and the federal structure of the
political system. Each of the 16 states has its own constitution, a democratically elected parliament, a
government, administrative agencies and independent courts. The federal constitution is binding on
states. The institutions at the federal level are responsible for major legislation and policy. States have
prime responsibility for two major policy areas, education and law and order. Implementation of federal
legislation is mainly the responsibility of the states to allow greater consideration of local needs and
issues, and thus bring government closer to the people. The Basic Law can be changed only by twothirds majorities in both houses of the federal legislature, and certain fundamental provisions, such as
the commitment to human rights and the federal structure, cannot be changed.
The lower house, the Bundestag, the only directly elected body at federal level, is elected every four
years. The Bundestag is the main legislative body and is solely responsible for electing the chancellor.
The upper house, the Bundesrat, represents state governments and must approve certain legislation,
including most of the more important bills. Each state government has between three and six votes in
the Bundesrat, depending on the size of its population. These votes must be cast as a block. In the
event of coalition partners in state governments disagreeing on the issue at stake in the Bundesrat, they
normally abstain. Since state elections are held separately during the federal parliamentary term, the
political composition of the upper house can change during the term of a federal government, and the
government of the day can, and often does, find itself without a majority there. This has been singled out
as a primary reason for the insufficient pace of reform in Germany.
The federal chancellor (head of the government) is elected by the Bundestag. Once elected, the
chancellor selects the members of the cabinet; individual ministers cannot be the subject of votes of no
confidence. A government can be voted down only if a majority for another chancellor candidate is found
under a constructive vote of no confidence. This provision aims to prevent a repeat of the governmental
instability that occurred between the 1920s and 1930s. The only time this instrument was used
successfully was in late 1982, when the small FDP switched its allegiance from the ruling SPD to the
CDU, enabling the CDU to form a workable coalition. The chancellor is empowered by the Basic Law to
determine the general policy guidelines of the government. However, this power is qualified by the
practice of coalition government, which means that the chancellor has to co-ordinate his intentions with
his coalition partner.
The federal president has a largely ceremonial role, and only under special circumstances does he have
some leeway in selecting a new chancellor. The president is elected for a five-year term by the Federal
Assembly, which consists of the Bundestag members and an equal number of delegates elected by
state parliaments. The current president, elected in May 2004, is Horst Kohler, until then managing
director of the IMF. He was the candidate of the right-wing opposition, the CDU/CSU and the FDP.
In 1999 the government, the Bundestag and the Bundesrat moved from the small town of Bonn, which
had been chosen in 1949 as an interim capital, to Berlin, the traditional political centre of Germany since
the 1870s.
Electoral system
The electoral system for the lower house is designed both to provide representative government and to
avoid the fragmentation witnessed in the years of the Weimar Republic. Each voter has two votes. The
first is used to elect 299 members of the Bundestag from individual constituencies on a first-past-thepost basis, while the second vote is used to determine the overall distribution of the 598 regular seats
72
between the party and is therefore more important. If a party wins more seats in the directly elected
segment of the vote than the number gained through party lists, the lower house is enlarged. In the
current parliament there are five such mandates, leading to a total number of seats of 603. To prevent
fragmentation, a party must secure three direct mandates or 5% of the total vote in order to be entitled to
its party list share, which inevitably constrains the development of new parties. The lower house is
elected for a fixed term of four years, and an early election can be called only under very restrictive
conditions, which has happened just once to date, in 1983.
Federal Constitutional Court
The Federal Constitutional Court (Bundesverfassungsgericht), based in Karlsruhe, has evolved within
five decades into the most active and powerful constitutional court in Europe, and is one of Germany's
most respected political institutions. The Basic Law provides wide scope for judicial review. Individual
state governments or a defeated minority in the Bundestag, provided it comprises at least one-third of
Bundestag members, can challenge a law in the court. Individuals can also demand an examination of
legislation that affects them directly, and lower courts can ask for legislation relevant to a case to be
tested by the court for compliance with the constitution. If the court finds a law to be unconstitutional, it
can deactivate it and replace it with its own regulations. Political parties seem to welcome the judicial
resolution of sensitive issues such as abortion and whether military forces can be deployed outside the
NATO area. The court has had an important impact on many aspects of policy, including tax legislation,
the pension system and fiscal redistribution between states.
***
73
http://www.howtogermany.com/pages/legal.html
The German Legal System
Although the German legal system doesn't match the US constitutional Bill of Rights point for point,
American legal specialists who have studied it are usually in agreement that it is fair. It provides many
safeguards to ensure the fairness of investigations and trials.
When authorities question a suspect, they must make it clear that any statement may be used against
him or her. A suspect can't be compelled to testify against himself or herself, and has the absolute right,
without undue influence, to remain silent.
Physical examinations can be made over the suspect's objection. Blood samples, for example, may be
taken if the alleged offense is related to drugs or alcohol, provided this doesn't pose a health danger.
The authority of German police is about the same as in the United States. If a party is required to appear
in a German court he or she will be properly served with a summons. Failure to appear in court may be
punished.
Drug offenses such as importation, sale or possession of narcotics, including marijuana and hashish, are
considered serious crimes.
German law has very strict requirements regarding the registration and possession of firearms and other
weapons.
Oral contracts are usually binding in Germany if their existence can be proven in court. There are some
exceptions, notably in the case of real property sales contracts.
Anything an individual sells (including a car) automatically carries a six-month warranty under law unless
this has been explicitly excluded. Normal wear and tear of a used item is not considered a defect.
There is no automatic grace period during which an order to buy something may be cancelled. Such
items must be accepted unless it can be shown that the salesperson "ambushed" the buyer (for example
by approaching him or her at home without invitation.)
Under German marriage laws, a party can't file for divorce until he or she has been separated for one
year, or for three years if the divorce is contested. Annulments are very rare.
The differences between German and American laws are particularly obvious when it comes to
contracts. In the US it is common, and usually necessary, to spell out everything in a contract. The rule in
German law, on the other hand, is: "a short contract is a good contract." (For example the main issues in
rental agreements and leases are codified in a law dealing with landlord-tenant relations. There may be
nothing in the lease dealing with notice periods, renovations required or actions in the event of nonpayment of rent, but these things are still covered because of the law.)
An agreement to rent an apartment or house for a fixed term cannot be terminated early except under
extraordinary circumstances. A job transfer is usually not an extraordinary circumstance. It's advisable
for Americans to have a German attorney lead them through this maze.
It is a criminal offense in Germany to show disrespect for the colors, flag, coat of arms or national
anthem of the country or any of its states; or to remove, damage or disfigure any publicly displayed
national flag or symbol. Insulting an individual can also be a criminal offense, particularly if the individual
is an official, such as a policeman or judge, acting under his legal authority.
The first phase of a German criminal prosecution is pre-trial investigation to determine if there are
grounds for a formal indictment. If a prosecutor determines that there is, the case is transferred to the
appropriate German court, where the presiding judge decides if the evidence warrants a trial. This
74
contrasts markedly from the US, where a judge will have little or no knowledge of the facts of a case until
evidence has been introduced in the courtroom.
German law requires a prompt and speedy trial, though at least one week must pass between the time
of the official notification of the charges and the date of the trial. The defense counsel may make a
postponement motion, for example, if more time is needed to prepare the case. The trial will be open to
the public unless this is specifically excluded because of public order, public morals or national security.
Also, the public is automatically excluded if the accused is a minor.
There is no such thing as a jury trial in Germany, though court procedures are otherwise similar to those
in the US, Under German law, as under American law, the accused is presumed innocent until proven
guilty. In minor cases there may be only a single judge presiding. Or, if the charges are severe and the
accused faces heavy penalties, there may be five persons hearing the case - three professional judges
and two lay judges.
Formal pleas of "guilty" or "not guilty" do not exist in German trials. An accused party can't plead guilty in
order to receive a lesser punishment. Hearsay evidence and, under certain conditions, depositions of
absent witnesses can be admitted as evidence in a German court. The attendance of witnesses and the
production of evidence can be compelled.
It is wise to have a German defense counsel unless a case is very minor or the charges are undisputed.
The right of the accused to be represented by counsel is carefully protected under German law. In some
cases when the accused is charged with an offense punishable by a year or more of confinement,
German law mandates the provision of counsel even if the accused doesn't wish it.
Attorney fees in low- to mid-level offenses may be roughly between €750 and €1,000. However, they
can be significantly higher if the trial takes more than a day, or if representation is by an attorney of high
repute. There are also court costs which can be quite high if the case is complex. If the accused in
criminal cases is acquitted, the court generally pays the attorney's fees.
Though he has the duty of defending the accused to the maximum of his ability, a German lawyer is not
as active in court as an American lawyer. In a German trial, the judge, not the defense counsel or the
prosecutor, obtains the testimony of the witnesses. After the judge is finished, the prosecutor and the
defense counsel will be permitted to question witnesses. The aim is to obtain the truth from witnesses by
direct questioning rather than through the examination and cross-examination generally used in a US
trial.
Contrary to US law, the German Code of Criminal Procedure allows victims of an offense, or their
survivors, the right to participate in the trial as intervenors or private prosecutors. Intervenors are usually
represented by counsel and may produce evidence related to the case, as well as question witnesses.
If the accused is convicted the court usually will credit the entire period of pre-trial confinement. For many
crimes a probation period of two to five years is often imposed on first offenders. Depending on the crime,
of course, prison terms can range from one month to life; though in practice sentences seldom exceed
15 years.
Fines can be levied for violations of traffic, environmental, consumer protection and unfair competition
laws. They can range from a minimum of €3 to €50,000 depending on the severity of the violation. Also,
objects used in the violation of a law (a car, for example) may be confiscated.
Confinement begins immediately after the judgment of the court is announced at trial, unless an appeal
is pending. In this case the judgment doesn't become legally effective until and unless the appeal is
denied or withdrawn.
Although German law protects the accused from being repeatedly prosecuted or subjected to double
jeopardy, the prosecution as well as the defense may appeal a court judgement, and such an appeal by
the prosecution is not considered double jeopardy. Notification for appeal must be submitted within one
75
week after the oral announcement of the court's judgement. A brief supporting the appeal must be
submitted within 30 days.
Special Courts exist in certain public law areas such as tax matters (Finanzgerichte) and social matters
(Sozialgerichte). Constitutional law issues are heard by the Constitutional Court
(Bundesverfassungsgericht). Under certain circumstances, accused parties who are not German may
have their passports confiscated to keep them from leaving the country. In serious cases, the accused
may be placed in pre-trial confinement.
76
August 20, 2005 Economist 26
2005 WLNR 13089631
Germany's election: Let battle commence
The campaign for September 18th kicks off
Gerhard Schröder may still be the loser in next month's election--but it is no longer so certain that Angela
Merkel will be the winner
IS THIS really the look of a loser? Stumping in Dresden this week, with the Semper Opera behind him
and more than 5,000 spectators in front, Chancellor Gerhard Schröder is not just going through the
motions. "We have to reform our welfare state", he thunders, "or it won't be there for future generations."
Surprisingly, he gets more cheers than boos.
Meanwhile, in the square in Chemnitz, an hour's drive west of Dresden, the crowd of some 3,000 is
more excited. But Angela Merkel, the leader of the Christian Democrats (CDU), seems strangely
defensive. Instead of giving a broad outline of her policies, she gets bogged down in details: her planned
two-point VAT increase won't raise prices across the board because rents, for instance, would be
exempt.
In short, as Germany's election campaign began in earnest this week, it was Mr Schröder who was
regaining his old spark, while Ms Merkel was looking weaker. The CDU and its Bavarian sister party, the
Christian Social Union (CSU), are bickering. The new Left Party remains strong--it is even appealing to
far-right voters. Meanwhile heavyweights in the Social Democratic Party (SPD) are jostling for jobs in a
putative grand coalition led by the CDU.
It was always likely that the poll ratings for both Ms Merkel and her party, which hit record highs in late
May, would fall. But nobody expected her campaign to get off to such a bad start. Of her programme,
voters mainly recalled the plan to increase VAT, which they dislike. Ms Merkel then said that, because of
the short campaign, there was time for only one televised debate with Mr Schröder, giving the
impression that she is afraid of him. And in an interview, she confused gross and net salaries, damaging
for a politician who prides herself on detail.
Yet these mishaps are negligible compared with the harm done by Edmund Stoiber, leader of the CSU.
Out of the blue, he started bashing eastern Germans, saying he could not let the east decide Germany's
future. "Unfortunately", he added, "the population is not everywhere as smart as in Bavaria." Some
pundits suggest that Mr Stoiber has still not come to terms with losing to Mr Schröder in 2002. Others
argue that he is simply trying to maximise votes in Bavaria, which would increase his influence in a new
government. Mr Stoiber's attacks seem sure to cost the CDU votes in the east, and maybe in the west
as well, because people will worry that there will be further infighting if the conservatives win power.
On August 17th Ms Merkel tried to turn the tide with the announcement of a "competence team", or
shadow cabinet. Putting it together was not easy, not least because Mr Stoiber has not said what job, if
any, he wants. And the choice of Paul Kirchhof, a former judge on the Constitutional Court, for the
finance portfolio may turn out to be not such a good idea. He is a tax expert who favours radical reform,
but he has no experience as a politician and his views are at odds with the CDU's programme, not least
the plan to raise the rate of VAT.
The biggest influence on the election, though, will be neither Ms Merkel's campaign gaffes nor Mr
Stoiber's antics, but the performance of the new Left Party. Before the party was formed from disaffected
former Social Democrats in the west, plus the east's ex-communists, Ms Merkel and her would-be
coalition partner, the Free Democrats (FDP), were confident of a clear majority over the outgoing
SPD/Green coalition, which had lost much leftist support. Now, these homeless leftists have found a
new harbour, forcing Ms Merkel to overcome a fully mobilised left.
Yet this does not fully explain the Left Party's 10%-plus poll rating. It is the party of choice for losers from
unification and those who think they are suffering from globalisation. But it is also attracting voters who
77
have lost faith in economic reform and in all the mainstream parties. More than two-thirds of the party's
potential supporters do not expect any of its programme to be implemented, but most hope it will
influence the other parties.
The Left Party may yet win less than 10%. After its novelty wears off, its supporters could discover that it
is more populist than truly left-wing. Its joint leader, Oskar Lafontaine, once finance minister under Mr
Schröder, excels as a simplifier. When introducing his party's programme, he called for German soldiers
to leave Afghanistan to lower the risk of terrorist attacks in Germany. He has also used vocabulary that is
usually reserved for the extreme right. Indeed, thanks to the strength of the Left Party, the neo-Nazi
National Democrats seem now to have little hope of crossing the 5% threshold for getting into parliament.
With Ms Merkel weakened, Mr Stoiber sabotaging her and Mr Lafontaine losing credibility, Mr Schröder
is starting to look better. As a formidable campaigner and proven media charmer, he was always likely to
improve his opinion-poll ratings. But this is not a recovery like 2002's, when he came from behind to
defeat Mr Stoiber. Tellingly, the media are treating him as if he were on a valedictory tour. Even his
remarks about not using military force against Iran have caused less stir in Germany than outside (partly
because Ms Merkel essentially agrees with him).
More than anything, it is the battle within the SPD over top jobs in a grand coalition that underscores Mr
Schröder's status as a lame duck. Peer Steinbrück, a former premier of North Rhine-Westphalia, and
Günter Verheugen, a vice-president of the European Commission, are talked of for the economics and
foreign ministries, respectively. Might a coalition with the Left Party be an option in a few years' time?
Yes, says Klaus Wowereit, who has been mayor of Berlin in alliance with the former communists for
several years.
In the weeks ahead some clarity may emerge. Polls will help to assess the damage done by Mr Stoiber-one taken after his remarks suggested that he has hurt Ms Merkel, but not the CDU. The Constitutional
Court still has to rule on whether the election should go ahead. (After a hearing last week, most
observers believe that the judges will acquiesce.) And on September 4th, Ms Merkel and Mr Schröder
will hold their televised debate.
This debate will shift the campaign into top gear. Almost half the voters, say some polls, will make up
their minds only in the final two weeks. The sole certainty now is that the CDU will end up with the most
votes (over 40%), so Ms Merkel remains likely to become Germany's first female chancellor. But
whether she will govern with the FDP, which, like the Greens, is stuck at around 7-8%, or be forced into
an uncomfortable grand coalition with the SPD, is anybody's guess.
78
Spiegel Online International
December 13, 2004
http://service.spiegel.de/cache/international/spiegel/0,1518,333248,00.html
SELLING OUT HUMAN RIGHTS
The Big Business Chancellor
Trouble is brewing in Germany's coalition government: The
chancellor's foreign policy is increasingly being perceived as a
brazen attempt to drum up business. Gerhard Schroeder
believes increased trade will improve human rights in China,
Turkey and Russia, but his critics are deeply skeptical.
This is the way German business leaders like to see their chancellor
behave: Gerhard Schroeder spent a good portion of his recent flight
to Beijing taking a break from politics to play cards and drink a glass
or two of red wine.
Gerhard Schroeder and Chinese
Premier Wen Jiabao: A dramatic
reversal of the German
government's earlier stances.
To the delight of Schroeder's fellow revelers, Michael Rogowski, the
president of the Association of German Industry -- who has proven
more than happy to engage in a little relaxed socializing with the
chancellor -- felt compelled to take a nap as soon as the plane had landed. While the grim but persistent
chancellor hurried off to the Great Hall of the People, Rogowski frankly admitted: "I'm just not feeling up
to it."
Despite Rogowski's absence, the chancellor and his entourage managed to rake in billions of euros in
Chinese orders for German technology. The Chinese ordered 23 passenger aircraft, 180 locomotives,
several power plants and a sewage treatment plant. Chinese editions of a popular German car
magazine and a runaway-hit quiz show were also kicked off.
The satisfied chancellor and his entourage raised glasses at the local Kempinski Hotel to celebrate their
tremendous business acumen. Siemens CEO Heinrich von Pierer, corporate consultant Roland Berger,
steel baron Juergen Grossmann and Christoph Gottschalk, the brother of a well-known German TV
personality, expressed their gratitude to Schroeder, their salesman par excellence.
A few days later, Grossmann was still ecstatic: "I wouldn't say it was the deal of the century, but the
chancellor is doing great things for the German economy here in China." Then he returned to his card
game.
Back in Berlin, members of Germany's governing coalition of the Social Democratic Party (SPD) and the
Green Party were curious to know whether Schroeder's fishing expedition to Beijing had included any
mention of the status of human rights in China. They didn't hear much. At least not much that could have
put their concerns to rest.
Although Schroeder's government has been critical of Beijing's record on human rights, the chancellor
seemed to defend the Chinese government against German accusations in his public statements.
Schroeder believes that the European Union weapons embargo against China, imposed in June 1989
following the massacre at Tienanmen Square, is outdated and should be lifted.
The chancellor indicated that he acknowledges, with "due respect," the protests from within government
ranks in parliament, who had put forward a resolution demanding an extension of the embargo.
Schroeder's response to critics at home was that you may be able to export goods, but you can't export
Germany's social model.
79
The most devastating aspect of Schroeder's foreign policy, even to his supporters, is the nonchalant and
tactless approach the chancellor has been taking. In his public appearances, there is little evidence of an
appropriate sense of distance vis-à-vis foreign leaders, a distance he is certainly capable of maintaining.
Suddenly Putin becomes an "unblemished democrat" and the massacre
at Tiananmen Square, which Schroeder calls an "incident of the time," is
turned into an historical footnote. By contrast, he shows a complete lack of
interest in human rights and democracy movements.
When it comes to choosing between morals and markets, Schroeder has
clearly staked out his position. His role is that of the pragmatic proponent of
Realpolitik, traveling the world as a representative of the German business
community. He measures his successes in terms of the size of orders for
German products, and constantly sees "interests to be realized," -- code
for German business profits.
Forgotten principles
When making public statements
about Russian President Vladimir
Putin, Gerhard Schroeder
generously overlooks human rights
questions.
It's a dramatic departure from the beginnings of the red-green coalition,
which, upon assuming power in 1998, promised to make significant changes to the German political
landscape -- and that included German foreign policy. Back then, issues such as torture, forced-labor
camps and public executions were at the top of the new administration's agenda, and some of its
avowed goals included taking more aggressive diplomatic steps to stamp out prickly problems abroad
like press censorship and government orders that exclude dissidents and minorities from civil service
professions. Back then, Joschka Fischer -- a Green Party member of parliament and now Germany's
foreign minister -- pronounced human rights to be the "leitmotif of German policy." The new
administration's noble claim was to favor morals over power, principles over profits.
It was a claim that had already evaporated by one of the first cabinet meetings, when the newly minted
federal government, against the protests of its own minister of foreign aid, Heidemarie Wieczorek-Zeul,
decided to extend Germany's loan guarantees for the delivery of Leopard tanks to Turkey. The reason?
To secure jobs.
But long forgotten are Fischer's emotional attacks against Germany's conservative administration in
1996, in an appeal to Germans to vote the left-leaning red-green coalition into office: "We will never see
peaceful development in China if we focus exclusively on business." Back then, Fischer was still saying
that German politicians must be "unyielding" in talking to the Chinese about human rights. Fischer's
words, almost a decade ago: "And if we lose business as a result, then
we lose business."
Eight years and more than a hundred overseas trips later, there has
been a significant shift in tone, at least when Schroeder speaks.
Economic interests now overshadow everything else. When the
chancellor thinks about Russia and Libya, he's mainly interested in their
enormous oil reserves. When he looks to China, he sees the
development of the world's biggest market for automobiles. For
Schroeder, Turkey's admission to the European Union represents a
welcome addition to markets for German goods.
Schroeder (right) with Turkish
Prime Minister Recep Tayyip
Erdogan: the chancellor sees great
German business opportunities in
Turkey's EU membership.
Schroeder says that politicians who spend too much time denouncing
policies they don't like are unlikely to achieve their goals. According to
Schroeder, it's an approach that can at best produce "headlines for a
day."
80
The Ugly Side
Human rights violations in Russia,
Turkey and China, as reported by
Amnesty International.
Russia
 torture and abuse by police forces
 inhumane prison conditions
 discrimination against ethnic
minorities and failure of police to
pursue attackers
 widespread violence against
women and now laws addressing
domestic violence
 limited freedom of speech
 Chechnya: executions, torture,
rape, disappearances
Turkey
 torture and abuse of prisoners in
police custody
 use of excessive force against
demonstrators
 harassment of human rights
defenders
 impunity for police abuses
 killings in disputed circumstances
 gender-discriminatory penal code






China
massive restrictions on speech and
right to practice religion
abuse and torture
unfair trials
arbitrary application of the death
penalty and numerous executions
ban on trade unions
breaches of UN Refugee
Convention (China is a signatory)
Perhaps to add a little glamour to his rather humdrum economic
goodwill missions, Schroeder has taken to invoking SPD icon
Willy Brandt. Brandt's policy of reconciliation with the Soviet bloc,
says Schroeder, helped create the conditions for a peaceful
competition of political systems. Brandt's strategy for success
went down in the history books under the catchy slogan of
"change through rapprochement." Schroeder's version is
simpler, but the basic concept is the same: "change through
trade."
Brandt, mayor of Berlin at the time, and his deputy Egon Bahr
wanted to make the Iron Curtain porous. As early as 1962, one
year after the construction of the Berlin Wall, the later chancellor
and winner of the Nobel Peace Prize described the reasoning
behind his approach in a famous lecture at Harvard University: It
was to stamp out communism.
Political leaders in the west, Brandt said, should try to ride out
the Cold War "by means of a relatively constant balancing of
interests, until the Soviet leadership abandons its goals or its
rule in Russia comes to an end."
Many former dissidents from East Germany and the Eastern
European countries disagree. Even now, former dissidents
believe they were betrayed and sold down the river by the
west's champions of Realpolitik. Many are embittered by the fact
that the free world's emissaries usually spoke only with their
oppressors.
This is why Polish dissidents, in particular, are at odds with
Germany's Social Democrats. They haven't forgotten the day
Willy Brandt fell to his knees at the Warsaw ghetto memorial, but
they also have trouble forgiving the SPD chairman for later
refusing to meet with labor leader Lech Walesa in Poland.
Christian Democrat Helmut Kohl was confronted with similar
accusations during his years as chancellor. In 1995, when he
visited the 196th infantry division of the Chinese People's
Liberation Army, he was rebuked by former East German
dissidents Baerbel Bohley and Juergen Fuchs, who referred to
his visit as "bowing to the Beijing leadership and its generals."
Then the SPD, the opposition party at the time, chimed in. In a
harshly worded critique of the conservative administration, SPD
chairman Rudolf Scharping said: "Anyone who turns human
rights into an ornament of foreign policy is destroying
fundamental principles and the shared objectives we should be
advancing." Fellow SPD member Gernot Erler proclaimed: "We
refuse to support a foreign policy that refers to human rights
issues as an arabesque."
But the time of loud protests has long past.
Nowadays, Schroeder wants people to believe that his goal is to promote human rights without
demanding them too vocally. He says that economic cooperation will automatically bring about greater
81
openness. As exciting as developments in China are, according to Schroeder, they could just as easily
turn sour. In this environment, Schroeder doesn't want to ruffle any feathers, particularly as China's statecontrolled media does an excellent job of preventing the Chinese public from getting wind of any foreign
leader's expressions of opinions, no matter how bold.
Instead of taking the Chinese to task for human rights violations, Schroeder prefers to expose them to
German legal sensibilities. Since 1999, German experts, including a group led by Hamburg law
professor Hinrich Julius, have been assisting the Chinese in developing their legal system.
Chinese judges have been observing the daily routines in courtrooms in Berlin and Hamburg for some
time now. In the past seven years, more than 2,000 Chinese government officials and judges, at the
invitation of Germany's Society for Technical Cooperation, have attended courses in business and
administrative law. The outcome of the program, says Julius, has been positive: "30 to 50 percent of our
suggestions have found their way into Chinese draft legislation."
But the truth of the matter is that hardly anyone pays attention to the new laws. In practice, the new
legislation enacted with German assistance is often worth less than the paper it's printed on. "That's why
we prefer to work with young judges," says Julius. "We want them to learn to hand down judgments
based on the law, and not other criteria." The criteria he's talking about are orders from the party
secretary.
Nevertheless, the German-Chinese legal dialogue gives Schroeder an excuse to circumnavigate human
rights in Beijing. By playing up this legal exchange program, he can engage in his favorite pastime
without spoiling the atmosphere: drumming up business for German companies. German businessmen
are ecstatic.
Courting Moscow
Schroeder's relationship with Russian President Vladimir Putin is
based on similar motives. The chancellor seems just as loathe to
irritate his chum in Moscow as the Beijing leadership.
Although Schroeder's confidantes claim that the chancellor spends
"entire nights" discussing the civil war in Chechnya, there is no
evidence of that in the impression he gives to the public. In fact,
Schroeder has even taken to standing up for his friend Vladimir in
front of the cameras. In August, referring to the elections in Chechnya,
which are widely considered to have been manipulated, he said that
A Russian soldier in Grosny,
he was "unable to recognize any irregularities." And any significant
Chechnya
response on Schroeder's part to the attempted election fraud in the
Ukraine -- a fraudulent outcome that was initially recognized by Putin -- came too late to be taken
seriously.
SPD foreign policy expert Gert Weisskirchen says Schroeder is firmly convinced that "economic
modernization inevitably leads to democratization."
Meanwhile, at least the business world is pleased. Between 1999 and 2003, the value of German
exports to Russia -- primarily machinery, cars and chemical products -- increased from €5.1 billion to
€12.1 billion. During the same time period, imports -- mainly oil, gas and raw materials -- grew from €8.4
billion to €14.2 billion.
Members of Schroeder's own party are less enthusiastic. Weisskirchen is demanding that "we must
express our criticism of Russia's disastrous positions more clearly."
82
Turning a blind eye to Turkey
In two meetings, Weisskirchen and a number of his SPD colleagues were at least able to convince the
chancellor to "accept the addition of a critical note to his governmental strategy." But that was about the
extent of it. Last week in Moscow, however, the leading foreign policy experts in the lower house of the
German parliament, the Bundestag, were also taking pains to respect Russian sensitivities.
In its dealings with Turkey, Berlin is also taking an increasingly generous approach when it comes to
human rights. It's certainly true that the European Union's strict criteria for membership have placed
considerable pressure on the Turkish government -- a positive example of how prospects for economic
cooperation can promote collaboration in the legal arena.
But ever since Schroeder decided, two years ago, to lend his support to Ankara's case for joining the EU,
Berlin has been handing out all kinds of political favors. This fall, for example, Guenter Verheugen,
Schroeder's commissioner in Brussels, announced that "systematic torture no longer exists" in Turkey,
raising the question as to whether occasional torture is acceptable.
Meanwhile, Foreign Minister Joschka Fischer has clearly parted ways with Schroeder when it comes to
human rights policy. At two joint press conferences held this year with his respective counterparts from
Moscow and Beijing, he had no qualms about voicing his critical opinion of Russia and China.
He rejects accusations with the meticulousness of an accountant. During a debate on Chechnya in the
Bundestag two weeks ago, Fischer proudly announced: "I've had my staff pull the agency reports, all
eight of them." Then he proceeded to quote a Reuters news agency report from February 12: "Fischer
voices German concerns about Chechnya policy."
Fischer, who is also Germany's deputy chancellor, deliberately
glosses over his difference of opinion with the chancellor. His
objective is to keep his hands clean, but his fellow Green Party
members have expressed themselves a little more clearly.
Green Party Chairwoman Claudia Roth calls Schroeder's bid
to end the weapons embargo against China
"incomprehensible."
Green Party leader Katrin Goering-Eckardt says it's
"nonsense" that the Chinese and the Russians will suddenly
stop doing business with the Germans if "we shine a brighter
light on human rights violations." In her view, an active human
rights policy "will also benefit the economy in the long run."
Chinese tanks on Tiananmen Square: Will they
roll over the EU's weapons embargo?
Even Schroeder's own Social Democrats are resentful of his recent activities. "Human rights form the
moral and legal premise of all political action," warned party chairman Franz Muentefering in a written
statement issued last Thursday. According to Muentefering, the issue of human rights is "nonnegotiable" in a social democracy.
Younger members of the Bundestag are especially suspicious of Schroeder's concessions. "A critical
dialogue with the Chinese is certainly correct," says foreign policy expert Dietmar Nietan. "But the
principal message should not necessarily be that the German chancellor strongly supports lifting the
weapons embargo."
Saving jobs back home
Schroeder has remained largely unmoved by grumbling from within the coalition government. He's
already been shifting into early campaign mode. Last Monday, he visited a gloomy industrial zone near
Beijing, the future site of a DaimlerChrysler plant. Speaking directly to German TV cameras, Schroeder
said that his main goal is to make sure Germans hold on to their jobs at home.
83
The following day, in the northeast Chinese industrial city of Changchun, he repeated the same
message. Although Schroeder was speaking to workers at the local Volkswagen plant, his words were
really intended for voters back home in Germany.
He said that the large percentage of Jettas, Santanas and Passats on Chinese roads helps stabilize VW
back home. "This also helps people keep their jobs in Germany," he continued. Standing on the podium
with Schroeder, the plant's own party secretary in charge of the joint venture, which is called FAWVolkswagen, greeted the chancellor's words with loud applause. The speech ended with a display of
fireworks, illuminating a banner that read: "Joining hands with FAW-Volkswagen to celebrate the
Olympics in Beijing."
But the people in charge of diplomatic protocol during Schroeder's visit were concerned that too much
real socialism could frighten people back home in Germany. That's why they made sure that at least the
cultural portion of the visit would be completely above reproach.
A few days before the chancellor's arrival, the managers of a Beijing art gallery were discretely asked to
consider taking down a picture of Otto Grotewohl, the first president of the East Germany. The
chancellor's advance team was worried that the picture might offend voters in the eastern part of
Germany.
When another gallery owner asked the chancellor what he thought about the cleanup, Schroeder
showed a feisty side to his personality: "I'll have my picture taken with anyone," he confessed, "even with
Marx and Lenin."
RALF BESTE, KONSTANTIN VON HAMMERSTEIN, HORAND KNAUP, ANDREAS LORENZ,
HARTMUT PALMER, GABOR STEINGART
Translated from the German by Christopher Sultan
84
April 21, 2005 Inter Press Service
By Julio Godoy
WEAPONS: EUROPEAN CAMPAIGN TO END CHINA ARMS BAN ANGERS U.S.
PARIS, Apr. 20, 2005 (IPS/GIN) -- The plan of several European governments, led by France and
Germany, to lift the ban on exporting weapons to China is a new bone of contention within the European
Union and between the bloc and the United States -- similar to rift about the invasion of Iraq two years
ago.
According to independent analysts, the issue is also a litmus test for Europe's ability to conceive and
carry out sovereign foreign policy, independent from restrictions from Washington and imposed through
U.S. allies in Europe.
"Those opposing the lifting of the European weapons embargo against China are trying to restrict the
European capacity to act internationally according to its own interests," Pascal Boniface, director of the
Paris-based Institute for International Relations and Strategy (IRIS), told IPS.
For several weeks, both French President Jacques Chirac and German Chancellor Gerhard Schroeder
have been insisting that the EU should lift the embargo on weapons exports to China, imposed in 1989
after the government crackdown on the student revolt in Tiananmen Square in June that year.
"The embargo is superfluous," Schroeder said Thursday during a plenary session of the German
parliament, the Bundestag. Schroeder stated before the German deputies that today's China has no
resemblance to the regime that brutally repressed the student demonstrations of 1989.
In praising "impressive Chinese economic growth", and recalling that Germany is economically highly
dependent on exports, Schroeder underlined that a special relationship with China is strategically
beneficial for Germany.
Chirac has been making similar claims, both in Paris and abroad. In an interview with the Japanese
Prime Minister Junichiro Koizumi in late March in Tokyo, the French president described the Chinese call
for an end to the embargo as "legitimate".
Civilian industries from France and Germany have in recent months obtained billion-dollar contracts from
China.
The German and French efforts to lift the embargo have the support of Spain, and to a lesser extent, of
Britain and Belgium. But they have provoked angry reactions from numerous European politicians from
all ideological sides, as well from commentators, who appear to be echoing the warnings against lifting
the embargo expressed by U.S. officials.
U.S. Deputy Secretary of State Robert Zoellick called the eventual lifting of the European embargo "a
mistake" that would inhibit "the opportunities and the integration between the United States and Europe
that we have seen develop."
If someday "European equipment helped kill American men and women in conflict, that would not be
good for the relationship," Zoellick said in Brussels on Apr. 5.
After such remarks, the domestic European opposition against lifting the embargo appeared to gain
momentum. On Apr. 14, the European Parliament voted by an overwhelming majority for a non-binding
resolution urging the EU to keep the arms embargo in place.
While in France there is practically no opposition to lifting the embargo, in Germany the ruling coalition
partners, the Social Democratic Party (SPD) and the Green Party, defend contrary positions.
85
While the SPD support Chancellor Schroeder's call for ending the embargo, the Green Party's leader
and foreign minister Joseph Fischer, in his speech to the Bundestag's plenary session last Thursday, set
as condition for such a European move that the Chinese government must sign international
conventions defending human rights.
The debate raises several questions: first, whether the continued arms ban is sustainable and indeed
compatible with an emerging strategic partnership between the EU and China, and with relations
between Europe and the United States. Second, how to assess human rights progress in China and
whether or not a sustained arms ban would advance that objective. Third, what would be the security
implications of lifting the arms export ban.
In the opinion of IRIS director Boniface, the opposition to ending the export ban seems to ignore that it
has not contributed to improving human rights in China, nor has it hindered U.S. allies, such as Israel,
from delivering military material to Beijing.
"According to figures of the U.S. General Accounting Office (GAO), between 1990 and 1996, in the
immediate years after the embargo was imposed, some 5.3 billion U.S. dollars in weapons were
delivered to China, especially by the Soviet Union, later Russia, and Israel," Boniface said.
Indeed, a report by the GAO from June 1998, titled "GAO on U.S. and Euro military exports to China",
established that almost 90 percent of all weapons deliveries to China came from the former Soviet Union,
Russia, and Israel, euphemistically hidden behind the description "Middle East".
Several studies suggest that China has bought highly sensitive U.S. military technology, including
missile-related imports, through Israel.
According to the Nuclear Threat Initiative (NTI), a private U.S.-based organization analysing weapons
transactions around the world, Israeli military cooperation with China has strained its relations with the
United States.
"For example, in the early 1990s, reports surfaced that Israel had secretly transferred information on the
U.S. Patriot missile system to China, in violation of Israel's promise to the United States not to transfer
the Patriot technology to any third country. Although both China and Israel denied the allegations, U.S.
government sources concluded that it was almost certain that a transfer of technology (though not
physical equipment) had taken place," an NTI report on Chinese military imports says.
China is reportedly using the Patriot technology to improve its surface-to-air missile (SAM) systems and
to develop counter measures against the Patriot for its ballistic and cruise missiles, NTI adds.
Israel has also purportedly supplied China with U.S. cruise missile technology. Specifically, Israel has
allegedly assisted China with the development of its YF-12A, YJ-62, and YJ-92 cruise missiles.
In July 2000, and only after the U.S. government exerted pressure, Israel backed out of a deal with
China, through which Israel would have outfitted three Chinese Il-76 planes with Phalcon radars, another
U.S. military technology.
NTI says the United States believed the deal would tip the strategic balance against Taiwan. Chinese
authorities responded harshly and demanded the return of their deposit as well as compensation. In
early 2002, Israel agreed to pay a reported 300 million dollars to put an end to the dispute with China
over the cancellation.
Since the annulment of the Phalcon radar deal, Israel has assisted China in other areas, including the
development of the HQ-9/FT-2000, a surface-to-air missile, which also would use U.S. seeker
technology. It has also worked with China in unmanned aerial vehicles (UAV). In July 2002, China
deployed Israeli "Harpy" anti-radar drones in military exercises in Fujian province.
86
Nor has the embargo hindered European governments from increasingly delivering military technology
to China. European weapons exports to China doubled between 2002 and 2003, up to some 520 million
dollars, according to official figures.
Boniface said the end of the European embargo would not change the present balance of power in Asia.
"The Chinese military budget represents barely one tenth of those of Japan and the United States,"
Boniface told IPS.
Measured per capita, the Chinese military expenses are even smaller, making them practically
insignificant compared to Japanese and U.S. expenditures, he said.
However, he added, the Chinese National People's Congress passage in mid-March of the so-called
"Anti-Secession Law", which authorises China to use force against Taiwan in case of a unilateral
declaration of independence by the island's government, was a blow to the European plan to lift the
arms trade embargo.
"But I don't see how China could actually use military force against Taiwan on the eve of the Olympic
Games in 2008," Boniface observed.
87
August 27, 2005 Economist Issue 950
2005 WLNR 13463467
Eastern Germany: Still troubled
Eastern Germany's economy
Signs of a German economic recovery are hard to spot in the east
A GIANT power station, open-cast coal mines, industrial glass production and army artillery ranges used
to provide a livelihood for the 70,000 inhabitants of Hoyerswerda, in the former East Germany. Since
German reunification in 1990 the army and the glassmakers have gone, and the power station has shed
thousands of jobs. The population has fallen by half. Among those who remain, the unemployment rate
is 22.3%.
And this is Saxony, supposedly the powerhouse of economic revival in the east: at 2.1%, its GDP growth
was the only one among eastern states to beat the national average last year. Hoyerswerda and other,
purpose-built communist-era towns illustrate how the east's troubles continue, even as the national
economy is at last showing signs of life. They are one reason why the European Commission is still
minded to designate eastern Germany, except Berlin, as an "Objective 1" development area, qualifying
for investment subsidies of up to 30% until 2013.
Since reunification, euro90 billion ($110 billion) a year has been poured into the east. Infrastructure and
renovated buildings now match the west's high standard. But unemployment still averages nearly 20%.
Many of the jobless, from school leavers to the chronically unemployed, are put on endless training
schemes--training, many ask, for what? Hence the strength in recent polls of the Left Party, with its roots
in communism, ahead of next month's general election. In the east it has been scoring around 30%.
Among those once ruled by communists, eastern Germans are not alone in their discontent (see box).
Being part of a rich, capitalist country, though, may make troubles harder to bear.
The government of Saxony is trying to develop tourism in the Lausitz area, where a chain of lakes, the
relict of open-cast mining, is the main attraction. But investors, apart from one setting up a riding school,
have been slow to put money into a region little known for tourism. Around Dresden and Leipzig,
Saxony's main cities, it is a different story, with "clusters" of industry and supply chains built around the
manufacture of cars and computer chips.
A change of national government next month looks likely, and might mean a rethink of plans to rebuild
the east. Dieter Althaus, the Christian Democrat premier of Thuringia, who has been named "coordinator" of the east by the conservative opposition, wants to replace indiscriminate tax rebates for
investment with more targeted support. This week the premiers of most other eastern states protested
that as much money as possible is needed. Mr Althaus says that there will be no less money, but that it
will be distributed case by case, not by "watering can". He denies that developing clusters is the only
goal. But regional economists conclude that it is better to concentrate on winners than to spread the
cash too thinly.
The obstacles to job creation in eastern Germany are huge. Most obviously, labour costs, although 62%
of the level in western Germany, are still roughly four times higher than in neighbouring Poland and the
Czech Republic. "We haven't seen a large-scale relocation to the east," says Mr Althaus. Improving
productivity and lowering labour costs will help, he adds, but eastern Germany is still in danger of being
"sandwiched" between prosperous old Europe and the EU's new members.
88
August 22, 2005 SPIEGEL ONLINE
http://service.spiegel.de/cache/international/0,1518,370883,00.html
By Markus Verbeet and Dominik Cziesche
GERMAN JUSTICE AND THE WAR ON TERROR
How Much Evidence Is Necessary in Suspected Terrorism Cases?
With the conviction of Mounir el Motassadeq, Hamburg's judges
wanted to prove that the German judiciary was capable of combating
Islamist terror. Terrorism cases continue to pose a dilemma for
German courts due to a lack of solid evidence against suspects.
Mounir el Motassadeq was
convicted of belonging to the
same terrorist cell which
conspired to commit the 9/11
attacks.
In the fight against terror, a dry throat is a relatively minor problem.
Ernst-Rainer Schudt had already been speaking for one hour on
Friday afternoon when a compassionate constable brought him a
glass of mineral water. For a split second, the man in the black robe
looked irritated, and then continued to talk for the next three and a half
hours -- without even taking a swig.
Schudt, the presiding judge, was explaining right down to the minutest
detail why the Fourth Senate of the Hanseatic Higher Regional Court
was sentencing the Moroccan, Mounir el Motassadeq, to seven years in prison: It was for belonging to
the same terrorist group as the cell which committed the 9/11 attacks, but not for abetting the murder of
the more than 3,000 people who died.
Above all, Schudt spoke directly to those who increasingly question whether the German judiciary is
sufficiently resolved to combat Islamic violence. The critiques have come after prosecutors showed
difficulty presenting convincing evidence in several previous terror trials. "One can answer that question
confidently with 'Yes'," Schudt replied.
Schudt's decision certainly came after a painstaking hearing of the accumulated evidence. This time
around, the senate heard testimony with impressive meticulousness from 100 witnesses, viewed
incriminating video material, collected new evidence, and re-examined old testimony. Altogether, the
court accumulated 3,500 pieces of evidence.
So is this German thoroughness against the Islamic threat now the benchmark for future proceedings?
Or will the German Supreme Court overturn the sentence in Motassadeq's planned appeal, just as
happened in March 2004 against his previous 15-year sentence?
Since then, the debate has centred on whether German justice is capable of taking rigorous measures
against Islamists. Attorney General Kay Nehm -- until now rather luckless in terrorism prosecutions -has complained that it is not the law that has been too lackadaisical but the judges themselves. "We
don't need special laws to combat enemies of the state," said Nehm. Evidently, the chief prosecutor
bitterly continued, one is only allowed to take action against suspected terrorists once it is already too
late.
Nehm has tackled the criticism head on. Because previous terror trials had failed to deliver the expected
heavy punishments, he has come out as the fall guy in the public eye. And even this time, the prosecutor
isn't totally happy, because he had demanded a 15-year prison term for Motassadeq. Instead, he got
seven. For him, it's another black eye. But there have been worse defeats.
Motassadeq's friend, Abdelghani Mzoudi, was actually acquitted in June. A Tunisian accused in Berlin of
being a terror suspect was eventually only convicted of minor tax evasion charges and the Munich case
against an Iraqi, who is suspected of financing terrorists, has been constructed in such a complicated
manner that yet more embarrassing reversals for Nehm are not out of the question.
89
A forthcoming case against men who allegedly planned an attack while former Iraqi Prime Minister Iyad
Allawi was visiting Berlin last December will also be tricky. The men were certainly behaving
conspiratorially and were likely scoping out a target. But no explosives were found -- which would of
course have been powerful evidence.
Partly, the problem also lies with the courts, which as Schudt says have developed a criminal law
oriented toward German clubs and societies. As such, they find it difficult to counter "sporadically visible
[terrorist] cells," which don't elect a treasurer, don't have a rigid sharing of duties and have no clear
structure. "Finding solid evidence is often difficult," concurred Bayern's Interior Minister Günther
Beckstein (CSU). Rheinland-Pfalz Justice Minister Herbert Mertin (FDP) also spoke up for the courts. "It
has been suggested, that they could [act], if they wanted to."
On Friday, the Hamburg judges suggested that the fault may also lie with the inadequate evidence
presented by prosecutors, thus countering Nehm's own criticism. In the original proceedings against
Motassadeq, government prosecutors said that plans for the 9/11 attacks were first hatched in 1999 at
the latest -- and in Germany, not in Afghanistan. This would have made a conviction more straightforward because accordingly, Motassadeq would have known earlier about his friends' plans. But
according to the court, this prosecution argument "had completely failed to convince."
This time, the judges didn't want to hear anything about constructs, suppositions and speculation.
Instead, they wanted to see the evidence. They used it to form a picture of how events unfolded. Among
other things, they completed a diagram of the living arrangements of the terror group to which, according
to Schudt, the recently acquitted Mzoudi also belonged. Mzoudi has now been sent back to Morocco.
In this manner, prosecutors carefully presented and judges examined the transactions. And the process
convinced the court that Motassadeq was more than just a harmless friend from the local mosque. In
fact, he belonged to the Hamburg terror cell. Even if, as assumed, he did not know the exact plans, the
judges said that he still supported the goals of the attackers.
For Nehm, it is unfortunate that so much detective work and the careful construction of a case only
convinced the court that Motassadeq was a member of a terrorist group. He had also wanted him
convicted as an accomplice to murder. The only way he can reconcile himself to the outcome is again to
cite the "problematic situation of accumulating evidence." As such, he says, the outcome was
"foreseeable."
90
March 29, 2005 dpa International Services in English
Frankfurt is lawyer capital: one for every 99 in population
Hamburg_(dpa) _ Frankfurt is the German city with the highest density of lawyers - one for every 99
inhabitants, the Chamber of German Lawyers said Tuesday.
The Berlin-based law society issued the figure along with a warning that Germany is so over-supplied
with lawyers that many young graduates are handing back their practitioner certificates after a few years
because they cannot find work.
In 2004, Germany as a whole had one lawyer per 651 inhabitants. A year before, the ratio was one to
680. A chamber spokeswoman said that despite the supply, law school enrollments were still growing.
Banking centre Frankfurt's pre-eminence is mainly because it has many large practices affiliated with
international partnerships.
91
May 2005 American Lawyer Vol. 27, No. 5
5/2005 Am. Law. 118
The German Lawyer
Heather Smith
RACE TO THE TOP
U.S. FIRMS DISCOVER A WINDOW OF OPPORTUNITY IN GERMANY, THANKS TO THE PRIVATE
EQUITY BOOM
Milbank, Tweed, Hadley & McCloy arrived in Frankfurt in 2001 with just two American partners, planning
to recruit some German laterals and build a great local practice. Things took a bit longer than expected.
'As we ended 2003, we really had made very little progress in Germany,' Milbank chairman Mel
Immergut admits.
What a difference a year makes. Today, competitors at Germany's top private equity practices privately
call Milbank, in the words of one, 'the most dangerous and unknown' of the rising U.S. firms. Milbank's
turnaround was built around four laterals, each renowned in his field, who together cover the four
practices essential to private equity deals. From Freshfields Bruckhaus Deringer, Milbank took global
private equity cohead Peter Nussbaum, corporate reorganization specialist Norbert Rieger, and tax
specialist Rolf Füger. From Baker & McKenzie came finance practice head Rainer Magold.
The story of how a small group of star laterals transformed a German office from footnote to front-runner
isn't unique to Milbank. Five years after the initial swarm of British-German mergers, U.S. firms have
found that a thriving private equity market and an increasing acceptance of lateral moves translate into a
window of opportunity. Skadden, Arps, Slate, Meagher & Flom; Kirkland & Ellis; and Dewey Ballantine
are some of the firms that have brought on private equity laterals in the last year to expand minor
operations or enter the market for the first time. These firms are betting that, with a few deftly chosen
laterals, an American firm can go, like Milbank, 'from being relatively nothing,' in Immergut's words, 'to
being a real, major, strong firm, albeit a relatively small one.'
A strong lateral hire anywhere bolsters a practice. In Germany, though, private equity clients often follow
their favored lawyer to a new firm, so the right lateral-better yet, the right team-can make a fledgling
office productive from day one. Unlike the U.S. and U.K. markets, the German private equity community
is still small and young enough that personal relationships between lawyers and clients can trump
institutional ties to law firms.
'It's not the law firm. It's the lawyers,' says Nussbaum client Max Burger-Calderon, a European partner at
New York-based private equity fund Apax Partners, Inc. 'They know us so well. They know all our deals.
When [Nussbaum] came to tell us he was leaving, he said specifically that [Milbank's German arm] won't
be a full-service firm. But then he gave us all the reasons why this won't be a problem, and we trusted
him.' In November, Milbank Germany closed its first deal for Apax, a leveraged buyout for 49 percent of
German cosmetics manufacturer LR-International Cosmetics & Marketing GmbH at an undisclosed
price. Nussbaum's group has landed work with other clients from its Freshfields days, including The
Carlyle Group, J.P. Morgan Partners LLC, and the private equity arm of The Goldman Sachs Group, Inc.
From an American perspective, says Immergut, 'the client loyalty has been startling.'
Private equity represents one of the few bright spots in a German economy beset with the highest
unemployment levels since World War II, stagnating capital markets, and falling business confidence.
Until recently, private equity dealmakers were regarded as suspect, even tacky. Germans had 'this
image of a mean corporate raider, like that actor [Richard Gere] in Pretty Woman,' says Clifford Chance
private equity partner Mario Schmidt. But headline-grabbing successes-such as Blackstone's
<<epsilon>>3 billion friendly takeover of German chemicals company Celanese AG in 2004-have made
the business community more comfortable with private equity. Private equity deals by investors foreign
and domestic in Germany surpassed <<epsilon>>22 billion in 2004, making it the third-largest private
equity market by value, after the U.S. and U.K.
92
Since 2001, investment levels (by value, including debt) have tripled. And some dealmakers think that
private equity investments will only get bigger. 'Relative to Germany's GDP, private equity [activity] is still
low,' says Freddy Strottmann, managing partner for Deloitte & Touche GmbH's private equity practice in
Düsseldorf.
Four factors bolster investor confidence that private equity will continue to be strong. First, Germany's
largest companies, like DaimlerChrysler AG, Deutsche Telekom AG, and Siemens AG, continue to
unload less profitable and noncore assets in the face of heightened scrutiny by shareholders and banks.
Second, the private equity funds are growing. The top ten funds in Germany now have, on average,
<<epsilon>>700 million at their disposal. In a consortium, says CVC Capital Partners investment director
Alex Nieberding, they could tackle a DAX 30 company, Germany's equivalent to the Dow Jones
Industrial Average. Third, since Germany's IPO market continues to be weak, more funds regard
secondary buyouts (sales to other private equity funds) as viable exit strategies. Finally, the familyowned, midsize companies known as the Mittelstand are beginning to look to private equity investment
to resolve succession issues and to provide financing.
The growth of the private equity market has increased demand for top-notch German private equity
lawyers. Most funds operating in Germany are branches of U.S. and U.K. funds, staffed with a handful of
people, often young and foreign. They rely heavily on outside lawyers to navigate both the legal system
and the culture. Lawyers suggest negotiating strategies, advise on what regulations are less enforced,
and introduce investors to the local players. 'A good lawyer is an integral part of our team,' says Tom
Harder, managing director at Munich-based Nordwind Capital, a Carlyle Group spin-off. 'He serves as a
counterpart to discussions . . . so it is very important to have someone [whose mind] I know and he
knows mine. A good [private equity] tax lawyer will say, 'Here are the risks, and for you, I'd take this.' And
he'll rank risks and say, 'This is minimal,' or 'Yes, it's a risk but it never happens.' '
Until recently, most of those lawyers worked at German or British firms. The British began arriving in the
early 1990s, ahead of most U.S. firms, and then swept up all but a handful of the national German firms
in a wave of mergers in 2000. While the mergers propelled Magic Circle firms to the forefront of the
German market, they also created the first chinks in formerly ironclad German partnerships, in no small
part because of pruning drives ordered from London. Last year Clifford Chance, which had merged with
Punder, Volhard, Weber & Axster in 2000, closed its Berlin office. Norton Rose's Cologne office merged
with CMS Hasche Sigle. Ashurst and Lovells deequitized several German partners. Linklaters, which
merged with Oppenhoff & Rádler in 2001, deequitized some and booted others. Freshfields Bruckhaus
Deringer, the product of British Freshfields's successive 2000 mergers with Deringer Tessin Herrmann &
Sedemund and Bruckhaus Westrick Heller Löber, hasn't purged its German ranks yet, but it's taking
steps, such as proposing a partner review board to make it easier to show underperformers the door.
Though not at risk themselves, Nussbaum says he and fellow Bruckhaus natives Rieger and Füger felt
that firing people just wasn't what a partnership should do. In late fall 2003, they met at a country house
just outside Munich to discuss the idea of moving. They sorted through the latest press on the top New
York firms and eliminated those deemed too aggressive, too abrasive, too New York-centric, too likely to
view them as a German support arm for New York deals. They arrived at Milbank, which they'd worked
across from on a few transactions, because it 'is comparatively small, with a true partnership structure,
which makes us feel at home,' says Reiger.
'It was a close partnership at Bruckhaus. We would loan money to each other if one wanted to buy a
house,' says Nussbaum. Christian Wilde, the Bruckhaus partner who had championed the merger, died
soon after Nussbaum's group resigned. At Wilde's funeral, Nussbaum says, he sensed his former
Bruckhaus partners eyeing him: '[Our move] was viewed as a defection.' But they were leaving
Freshfields. It's notable that German private equity leaders Hengeler Mueller and boutique Pöllath +
Partners-which have not merged with any foreign firms-have suffered no such defections to the foreign
insurgents.
German laterals seem to move more for ambition than money, according to interviews with more than 30
local lawyers. Markus Strelow, who cofounded Ashurst's Frankfurt office seven years ago, jumped to
Mayer, Brown, Rowe & Maw in January with an eye on the United States. 'There are a lot of private
93
equity funds in the U.S., so getting their attention is easier [at a firm] with a strong presence in the U.S.,'
says Strelow. Matthias Jaletzke left Baker & McKenzie's Frankfurt private equity practice to jump-start
Skadden's German practice last November. 'Private equity lawyers are by nature entrepreneurial, ' and
therefore more amenable to switching firms, says Jaletzke. Like Strelow, he attributes his own itch to
move to wanting a stronger private equity reputation in banking centers like New York and London.
When Jaletzke joined Skadden, its 15-year-old Frankfurt office had just four partners. Skadden did not
appear on mergermarket's league table for the top 20 transaction advisers in Germany in either 2003 or
2004. The firm doubled its German presence with the Baker group, which also included corporate
partners Peter Veranneman, Walter Henle, and Bernd Mayer, as well as counsel and associates, spread
over offices in Frankfurt and Munich. Jaletzke says Skadden hopes to add another ten to 15 lawyers in
the next two years, bulking up capital markets, mergers and acquisitions, tax, and antitrust practices on
the back of the private equity work the four brought with them. Apax, London-based PPM Ventures
Limited and Barclays Private Equity, Frankfurt's BHF Private Equity, Stockholm's EQT Partners AB, and
Paris-based AXA Private Equity have all maintained their ties to the lawyers, says Henle. Apax's BurgerCalderon says that today he works with Skadden, Milbank, and Pöllath + Partners, 'but if you asked me
[last year], I would have said Baker, Freshfields, and Pöllath. We follow the lawyers wherever they go.'
Not every client comes along, though. 'I'm pretty content with my following, which surely doesn't mean
that I took them all with me,' says Strelow of his move to Mayer, Brown. When Jaletzke's group left
Baker, one partner, Lutz Zimmer, now counsel at Skadden, was advising an American auto parts
manufacturer, Bourns, Inc., of Riverside, California, in the acquisition of Ruf Automotive Group, a
subsidiary of W.E.T. Automotive Systems AG. Zimmer's mid-deal departure, says Bourns general
counsel Gregg Gibbons, 'was a momentary glitch. No one particularly likes it. . . . From a client's
perspective, one minute you're working with someone, the next you're not.' Gibbons says he would still
work with Baker, but not Zimmer. For his part, Zimmer says a scheduling problem with another client
forced him off the Bourns deal a couple of days before the group announced its plans to move to
Skadden.
Kirkland & Ellis and Dewey Ballantine are two more U.S. firms that hope to use the acquisition of a
private equity practice as an engine for growth in Germany. Since last May, Dewey Ballantine's Frankfurt
office has grown from one to five German partners through lateral acquisitions, including private equity
specialists such as Shearman & Sterling's tax guru Hanno Berger, Norton Rose's Markus Federle, and
Baker & McKenzie's Benedikt von Schorlemer. When K&E opened a German office last November, it
recruited Volker Kullmann from Clifford Chance to service Bain Capital, LLC, the Boston-based fund that
the firm advises in the U.S. The Kirkland office, which is in the same Munich building as Bain's offices,
now boasts nine lawyers: five who joined Kullmann from Clifford Chance, two partners from K&E's
London office, and a first-year associate recruited from a local German firm. Kullmann says he was
attracted by the chance to build something new. His ambitious growth plans call for hiring 15 lawyers by
this summer and 25 within a year-not lateral partners, but young associates that the firm can mold in its
own image.
Although Kullmann has not closed any deals since his arrival, he says that he has three in the works for
clients from his Clifford Chance days. He didn't bring along his entire client list from the old firm, he notes:
'Some [clients] said, 'Of course, you're not the only person at Clifford we work with.' ' But Kullmann adds
that conflicts often force clients to turn to other firms, and his previous relationships with those funds puts
him in a good position to woo them.
Their big plans for growth aside, the new American entrants are essentially boutiques. 'You don't need a
whole lot,' says Federle, when ticking off the practice areas necessary for private equity deals: mergers
and acquisitions, corporate, finance, tax. 'On smaller issues, like environment, pharmaceutical law, you
can outsource it.'
Partners at large German and British firms say they're not losing any sleep over the upstarts. 'It doesn't
change the competition levels [we face], because it's the same people wearing new hats,' says Reinhard
Pöllath of Pöllath + Partners. Christopher Kellett, a private equity partner with Clifford Chance in
Frankfurt, scoffs at the notion that U.S. firms functioning as private equity boutiques can compete with
94
firms like his own, with its 400 lawyers in Germany in a full range of practice areas. 'It's a sweet story, but
unrealistic,' he says. In an auction for a given asset, Kellett says, the various competing private equity
investors each retain a few lawyers to advise on the initial offer. Then, as the auction proceeds, investors
often need more specialized legal advice in areas such as environmental or labor law-practice areas that
Clifford Chance has on the ground in Germany, but that Federle would have to farm out. Many of the top
specialists are at large firms and therefore may be conflicted out by their partners' involvement in the
same auction, Kellett says.
Some of the largest private equity clients also doubt that anything less than a full-service office can meet
their needs. Wolf Wolfsteiner, investment manager for London's 3i Group plc, says large funds like his
want to minimize their provider lists. 'We as clients operate globally,' he says. 'We are trying to limit the
number of firms we turn to, so we want both geographic spread and practice areas. I like to have one or
two contact partners at Clifford Chance, so I know when it comes to banking which team I want, and
when it comes to anything else, I can turn to them and tell them, 'Remember what I did on this? Do it
again.' '
Likewise, CVC Capital Partners' Nieberding, who counts on Clifford Chance's Mario Schmidt for his
deals, says that a full-service firm with reliably solid quality across practice areas makes his life easier.
Still, even he would consider changing firms. 'If my favorite lawyer switches to another firm, I could be
convinced [to follow him],' Nieberding says.
For the U.S. firms that have recruited such favorite lawyers, the next challenge is to hold on to both those
lawyers and their clients. 'It remains to be seen whether the laterals will stay [at their new firms],' says
Daniela Favoccia, a private equity partner in Hengeler's Frankfurt office, speaking for many German
lawyers who remain dubious about the new mobility in their profession. But as the German private equity
world grows up, American firms are hoping that the one-to-one connection between client and lawyer will
become more of an institutional relationship between client and firm.
As Nussbaum points out, the long-established union of Kohlberg Kravis Roberts & Co. and Simpson
Thacher & Bartlett in New York began as the personal relationship between Simpson's Richard Beattie
and KKR's Henry Kravis. 'It will be the same here,' Nussbaum predicts confidently. Only instead of
Freshfields, he expects to bequeath his connections to Milbank, the unknown firm no longer.
hsmith@alm.com.
95
June 21, 2005 Guardian (UK)
2005 WLNR 9759608
Fees? Nein, danke: Matthias Becker reports on German students' attempts to keep university
tuition free
Last month students demonstrated yet again in Hamburg, telling all and sundry that "we are here, we are
loud". It was one of several demonstrations in the city - and across the country - in the past six months.
But these students are not very hopeful that they will be able to prevent the introduction of fees any
longer. A majority of German students have now accepted that they will soon have to pay for university
tuition like their British counterparts.
The highest German court, the constitutional court in Karlsruhe, decided in January that a law preventing
the federal states (the Bundeslander) from charging tuition fees was unconstitutional. According to
German law, education lies within the competence of the federal states, but because of rank and file
pressure, the newly elected SPD government had passed the law in 2002 "in order to secure equal living
standards in the whole country".
Immediately after the court decision, many federal states announced that they would introduce fees as
soon as possible. In these regions, one academic term will cost euros 500 (pounds 343). A German
thinktank, the Institute for Economic Research (DIW), estimates that fees could soon rise to euros 2,500
(pounds 1,715). The actual conditions of payment are still unclear, but many German politicians point to
the Australian model, where students pay after they have graduated and their incomes have reached a
certain level. State loans with low interest rates are to be available for students.
The predominant feeling among German students is confusion. Different federal states will introduce
different systems of fees and loans, and some have even indicated that they plan to limit access to their
universities for "foreign" students from other regions. There will be no common rules for financing
universities and funding for students - no wonder students have a hard time finding their way through the
chaotic "academic marketplace", with 16 federal states, hundreds of universities, and various institutions
providing bursaries. To complicate matters even more, some subjects, such as law and medicine, will be
more expensive than others.
Hamburg will be among the first to introduce fees, and some students are already trying to change to a
university somewhere else in order to avoid paying. Marion Klamm, studying on a masters course in
media and communications, is one of them. "I am already working in a bar four nights a week," she says.
"I simply cannot afford another euros 500 a month." How about a loan, then? She shrugs: "Everyone
knows that the German job market is tight at the moment. I don't want to end up with debts and
unemployed in two years' time."
The court ruling was a defeat for the SPD education minister, Hildegard Buhlmann, who pushed for a
ban on tuition fees. Buhlmann remains critical. "Every young person needs the chance of a high-quality
education, irrespective of his or her parents' income," she said. Chancellor Gerhard Schroder also
criticised the plans of the federal states. "We need more, not fewer students," he said last week. He
called on the federal states to introduce "a socially equitable system".
Student activists take such comments with a grain of salt. "The government is trying to hug us to death,"
says Bernd Schmittinger, one of the organisers of the protest in Hamburg. Students have noticed that
many SPD politicians have started to waver when it comes to the question of fees.
Declining state funding has left the German academy in a sorry state - lecturers and students complain
that courses are overcrowded and that departments are badly equipped. The German Rectors'
Conference (HRK) believes that universities are under-funded by euros 3bn a year. Virtually no one
denies the need for change, if with different emphases. While some argue for more government grants
to remove "social barriers", others want to use tuition fees to introduce "market mechanisms" into the
academy. Critics point to Austria, where tuition fees were introduced three years ago, and where
enrolment dropped by as much as 15% afterwards.
96
Almost all Germans agree that to have 36% of young people taking up a university course - the OECD
average is 47% - is not enough. To stem the brain drain, and to stay competitive, German universities
desperately need money coming in. But are tuition fees a good way to achieve this? Professors and their
organisations are divided. Peter Gaethgens, the HRK president, welcomed the decision: "The prohibition
of fees was a competitive disad vantage. We urgently need to improve the quality of teaching." But
Kambiz Ghawami, head of the German section of the World University Service, believes that "in future
money, not talent, will decide who can study in Germany". The share of international students in
Germany is 10%. He fears that fees will deter international students, especially because there is no
adequate system of bursaries.
There is also a growing fear among scholars that the fees will only compensate for declining state funds.
Comparative international studies have found that virtually everywhere where tuition fees have been
introduced, state funding per head later declined. Therefore, universities worry that the money will benefit
only the strained budgets of the federal states. "We need to make sure that this money will not be used
to fill holes in the budget," says Gaethgens.
But the organisational details of the distribution of tuition fees are of little interest to people like Klamm.
She has calculated that, after five years of studying, she would end up with a debt of around euros
23,500 (pounds 15,700). What will she do if she does not find a university place in another German state?
"I guess I will either grudgingly shoulder the debt, or quit." Statistics show that two-thirds of all students
have to work to finance their studies. In the German higher education system, students are more or less
free to decide when to take their exams. Working students need more time to finish their courses, and
enter their career later than others - something that Klamm thinks is unfair: "Education should be
available to all, not be a privilege."
97
February 11, 2005 Mondaq Bus. Briefing (Pg. Unavail. Online)
2005 WLNR 1953792
Volker Teigelkötter and Sandra Urban-Crell
New Anti-Discrimination Act (ADA) in Germany
Germany will have a new ADA in the first half of the year 2005. Initiated by several EU directives, the
German Government has recently presented the draft for a new ADA for discussion in the House of
German Parliament (Deutscher Bundestag).
1. The new ADA forbids any unlawful discrimination based on race, ethnical origin, sex or sexual identity,
religion or view of life, disability or age.
It does not only apply to employment relationships, but also to day-to-day business (shops, insurers,
hotels, restaurants, tenancy etc).
In practice, the new ADA will have its greatest effect in the employment sector. The new ADA refers to
all aspects of employment (recruitment, layoff, relocation, promotion, remuneration, bonuses etc).
The employer will also be obliged to protect his employees against any discrimination by other
employees and even by his customers or suppliers.
In case of an unlawful discrimination the employee can claim for damages against his employer. The
amount of compensation is not limited in the ADA, but must be reasonable.
In a court proceeding the employee has only to present credible discriminatory circumstances. In return,
the employer has to prove that no unlawful discrimination took place (shifting of burden of proof).
External anti-discrimination organizations have the right to support and represent the employee allegedly
discriminated in the course of court proceedings.
2. The new ADA will lead to additional costs and more legal risks for the companies operating in
Germany, in particular for medium-sized businesses (so-called "Mittelstand"), less experienced in antidiscrimination procedures than multinational enterprises.
Companies should elaborate and introduce Codes of Conduct already well known in the US, to
safeguard the compliance of its employees with the new anti-discrimination law.>
Companies will have to provide additional qualified personnel to deal internally with a growing number of
complaints against alleged discrimination. A significant raise of court proceedings is expected because
of the new rules on compensation. Therefore, additional legal advice is needed. Some companies may
find their case being reported in the newspapers.
In order to protect themselves the companies will have to document carefully all steps of their decisions
relating to the hiring and firing of personnel, to promotions, remunerations etc.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice
should be sought about your specific circumstances.
98
Tuesday, January 27, 2004
Agence France Presse
2004 WL 66168814
German doctor indicted for alleged Nazi-era murder
An 88-year-old German doctor has been indicted on suspicion of murdering a mentally ill patient in 1941
as part of the Nazi "euthanasia" program - the first case of its kind in reunited Germany. Prosecutors in
the eastern town of Gera said Tuesday that the doctor, Rosemarie Albrecht, had given a then 34-yearold patient a fatal dose of sleeping pills while she was in the care of a psychiatric ward at Stadtroda.
Investigators learned of the case in 2000 using the archives of communist East Germany's Stasi secret
service and "meticulously kept" records from the clinic where Albrecht had worked, said state prosecutor
Raimund Sauter.
During her two-year service in the ward, 159 other patients died, many under mysterious circumstances,
Sauter said.
The Stasi had opened an investigation into the case in 1964 but stopped the probe without explanation
in 1966.
Albrecht, who has consistently denied the charges against her, had later been a prominent professor at
the University of Jena in the German Democratic Republic, as the Stalinist state was known.
The Nazi regime used the term "euthanasia" to describe their systematic murder of mentally ill and
physically disabled people deemed unfit to live among an Aryan "master race".
Germany on Tuesday marked Holocaust Memorial Day, the 59th anniversary of the liberation of the
Auschwitz death camp in Poland where some one million Jews were killed.
February 8, 2005 AP Online
Charges being dropped in Germany against doctor suspected of Nazi-euthanasia killings
FRANKFURT, Germany – The murder charge against a former medical professor accused of killing a
patient as part of the Nazi's euthanasia program is being dropped, prosecutors said Tuesday after
deeming the 89-year-old woman unfit to stand trial.
A doctor testified that Dr. Rosemarie Albrecht, who formerly taught at the university in Jena, was
physically unfit to withstand the pressures surrounded with a trial, prosecutor Thomas Villbock in Gera
said.
Albrecht was suspected of killing a patient in 1941 with an overdose of sleeping pills as part of a Nazi
drive against the mentally ill and physically disabled.
Another expert also testified to prosecutors that Albrecht acted according to practice at the time, Villbock
said. He declined to elaborate.
More details are expected Wednesday after prosecutors formally file with the court to drop the charges.
Prosecutors had investigated Albrecht's case for more than three years, after details of her patients'
medical records emerged from East German secret police files.
The former doctor has insisted she is innocent and had planned to fight the charges.
99
Records showed that 159 people died while Albrecht was working as one of the doctors between 1940
and 1942 at the women's and children's psychiatric ward at a hospital in nearby Stadtroda.
The alleged victim, 34-year-old Selma Albrecht, who is no relation to the accused, had been diagnosed
as schizophrenic and recommended for sterilization by a Nazi court.
100
China Intro
Factsheet
Jul 13th 2005
From the Economist Intelligence Unit
Source: Country ViewsWire
COUNTRY BACKGROUND
FROM THE ECONOMIST INTELLIGENCE UNIT
Annual data
2004(a)
Historical averages (%)
2000-04
Population (m)
1,299.8
Population growth
0.7
GDP (US$ bn; market exchange rate)
1,681.3
Real GDP growth
8.5
GDP (US$ bn; PPP)
7,553.2
Real domestic demand growth
9.8
GDP per head (US$; market exchange rate)
1,293
Inflation
1.1
GDP per head (US$; purchasing power parity)
5,811
Current-account balance/GDP
2.7
Exchange rate (av) Rmb:US$
8.3(b)
FDI inflows/GDP
3.5
(a) Economist Intelligence Unit estimates. (b) Actual.
More economic data
Background: The People’s Republic of China was founded in 1949 by the Chinese Communist
Party (CCP). The CCP chairman, Mao Zedong, then led the country for nearly three decades.
After gaining power in 1978, two years after Mao’s death, Deng Xiaoping introduced economic
reforms. From 1989 to 2002 Jiang Zemin presided over a more collective leadership. The CCP is
now led by Hu Jintao. A new government was installed in March 2003. Mr Jiang remains
influential.
Political structure: The CCP dominates the government. Mr Hu is general secretary of the CCP,
state president and chairman of the Central Military Commission, which controls the armed forces.
Wen Jiabao leads the government as premier. The National People’s Congress is the largely
rubber-stamp legislature. The Chinese People’s Political Consultative Conference groups political,
social and religious constituencies within a powerless institution. There is no formal political
opposition to the CCP, and dissent is firmly suppressed.
Policy issues: China’s leaders want continuing economic liberalisation and sustainable growth
alongside enduring political control. They recognise that many people have lost out since
economic reforms were launched at the end of the 1970s, and that such large numbers of
disadvantaged citizens constitute a political liability. Accordingly, the balance of economic
development is being tipped towards social priorities. The government wants to close the ruralurban divide. Fiscal policy is being tailored to stimulate the rural economy. The economy is
opening up now that China has become a member of the World Trade Organisation and is
pursuing additional liberalisation. A private sector made up of domestic and foreign-funded
interests is now fully encouraged to expand and complement the state sector.
Taxation: The corporate income tax is theoretically 33%. In practice, a raft of preferential policies
reduce the tax paid by foreign-invested enterprises (FIEs). A 15% rate applies in special
economic zones, and a 24% reduced rate applies in 14 coastal open cities. Preferential policies
for FIEs are to be phased out, and a uniform tax rate for domestic and foreign enterprises is to be
applied. Tax breaks will still be offered for investment in the west and north-east of the country
and in high-technology industries.
101
Foreign trade: In 2004 merchandise exports were worth US$593.6bn and imports US$560.8bn
(according to customs data), leaving a surplus of US$32.8bn. On a balance-of-payments basis,
the trade surplus in 2004 was US$59bn; the current-account surplus stood at US$68.7bn.
Major exports 2004
% of total
Major imports 2004
% of total
Office machines & data-processing equipment
14.7
Electrical machinery
19.7
Telecommunications products
11.5
Crude oil & fuels
7.9
Apparel & clothing
10.4
Office machines & data-processing
5.3
Electrical machinery
10.0
Machinery for particular industries
4.7
Leading markets 2004
% of total
Leading suppliers 2004
% of total
US
21.1
Japan
16.8
EU
18.1
EU
12.5
Hong Kong
17.0
Taiwan
11.5
Japan
12.4
ASEAN
11.2
equipment
More economic data
SOURCE: Country Forecast
China's economy
Aug 2nd 2005
From Economist.com
China introduced market reforms in the early 1980s but began emerging as a driving economic
force only after joining the World Trade Organisation in 2001. China now runs a trade surplus with
the United States (prompting China-bashing from American politicians) and has become the
world's third-largest car market. Over a dozen Chinese companies are on the Fortune 500 list;
some, such as Lenovo and the state-controlled China National Offshore Oil Corporation, have
begun looking for foreign acquisitions.
But growth is putting pressure on China's infrastructure, especially in the booming Pearl River
Delta—while other regions see high levels of unemployment. At the same time, a lack of skills
has led to labour shortages. Pollution is rife, health care strains rural resources, and the
stockmarkets sag. Wen Jiabao, the prime minister, hopes to address workers' concerns by
cutting farmers' taxes and giving them better medical care and education. (Some 800m Chinese,
or 60% of the population, live in the countryside, averaging less than $1 a day in income.)
Still, the economy's recent growth has been seemingly unstoppable, even in the face of
government countermeasures. The government raised interest rates in October 2004, the first
increase since 1995, and unpegged the yuan from the dollar in July 2005, after second-quarter
growth was reported at 9.5%.
History in brief
Jan 29th 2004
From Economist.com
China took shape as a political entity in the first millennium BC, and until the 20th century largely
remained a coherent empire governed by scholar-officials after the Confucian vision of a
102
meritocratic, ordered society. Even foreign conquerors like the Mongols (1279) and Manchus
(1644) did not change the essential character of Chinese society, and became partly Sinicised
themselves. The attitude towards outsiders was primarily one of condescension.
Europeans began coming to China in the 16th century: first Jesuit priests, then enterprising
traders and diplomats, who in time overpowered the conservative empire. Britain’s victory in two
Opium Wars (1839–42 and 1856–60) forced China to accept open ports, foreign envoys, free
movement for Christian missionaries and a British hold on Hong Kong. This foreign presence
exposed China to Western ideas, and in 1912, the last Chinese dynasty, the Qing, fell to the
nationalists under the charismatic leadership of Sun Yat-sen.
Sun was ousted very shortly after 1912, and in the absence of a strong central government the
country split into informal fiefdoms led by warlords. Chiang Kai-shek, one of Sun’s former
lieutenants (and husband of one of Sun’s sisters-in-law), joined with the nascent Chinese
Communist Party (CCP) to defeat the warlords and reunify the country. Chiang turned on the
communists in 1927, but failed in his efforts to root them out. He was forced to ally with them
again against the Japanese, with whom full-fledged war broke out in 1937. After Mao Zedong and
his communist forces played a big role in defeating the invaders, he then turned on Chiang in
1946.
In 1949 the communists forced Chiang and his followers to flee to Taiwan, declared the People’s
Republic, and spent the next year solidifying their hold on the mainland. After several years of
relatively consensual leadership, Mao grew as tyrannical as any emperor had been, and many of
his grand policies backfired. The Great Leap Forward’s experiment with industrial and agricultural
collectives in 1958–60 led to mass famine, and the attempt to re-ignite revolutionary fervour
through the Cultural Revolution of 1966–76 drove the country into political and social chaos. By
the time Mao died in 1976, the CCP was ready for new ideas. Deng Xiaoping, his successor,
dismantled collective farming and began gradually freeing China’s economy. But as the bloody
suppression of student-led demonstrations in Tiananmen Square in 1989 showed, the Party has
embraced economic change more easily than political liberalisation.
China's politics
Jul 7th 2005
From Economist.com
The Chinese Communist Party (CCP) has governed China since 1949. Deng Xiaoping, who led
the party—and therefore China—from 1978 to 1997, began a policy of “socialism with Chinese
characteristics”, encouraging more economic openness and foreign trade. But the CCP retains an
iron grip on politics: other parties are outlawed and criticisms are quickly suppressed.
When Deng died in February 1997, Jiang Zemin and Zhu Rongji came to power as president and
prime minister respectively. They oversaw China's reunification with Hong Kong in July 1997 and
its joining of the World Trade Organisation in 2001. But repression of dissent continued,
especially of the Falun Gong movement. More recently, the government has been less tolerant of
“public intellectuals”. Zhao Ziyang, an economic reformer who had protested against the use of
force on Tiananmen Square demonstrators in 1989, remained under house arrest until his death
in January 2005.
At the 16th Party Congress in November 2002 Hu Jintao was named leader of the CCP and Wen
Jiabao prime minister. Mr Hu has taken small steps towards greater financial transparency, but
there is little to suggest his approach to power differs much from Mr Jiang's. The government
remains wary of large-scale protests, even if they suit its political purposes, such as the antiJapanese protests of March and April 2005. But there are repeated reports of low-scale unrest,
especially in rural areas where property rights are ambiguous.
103
Political structure
Jun 22nd 2005
From the Economist Intelligence Unit
Source: Country Report
Official name
People’s Republic of China
Form of government
One-party rule by the Chinese Communist Party (CCP)
The executive
The state council, approved by the National People’s Congress (NPC); state council members, including
the premier, may serve no more than two consecutive five-year terms
Head of state
A president and a vice-president are approved by the NPC for a maximum of two consecutive five-year
terms
National legislature
Unicameral National People’s Congress (NPC): 2,989 delegates are selected by provinces,
municipalities, autonomous regions and the armed forces. The NPC approves the president and
members of the state council, as well as the members of the standing committee of the NPC, which
meets when the NPC is not in session. All arms of the legislature and the executive sit for five-year terms
Regional assemblies & administrations
There are 22 provinces, four municipalities directly under central government control and five
autonomous regions. These elect local people’s congresses and are administered by people’s
governments
National elections
A new government will be approved at the NPC meeting in March 2008
National government
The politburo (political bureau) of the CCP sets policy and controls all administrative, legal and executive
appointments; the nine-man politburo standing committee is the focus of power
Main political organisation
The CCP, of which Hu Jintao is the general secretary
Politburo standing committee members
Hu Jintao
Wu Bangguo
Wen Jiabao
104
Jia Qinglin
Zeng Qinghong
Huang Ju
Wu Guanzheng
Li Changchun
Luo Gan
Key members of government
President: Hu Jintao
Vice-president: Zeng Qinghong
Premier: Wen Jiabao
Vice-premiers: Huang Ju; Wu Yi; Zeng Peiyan; Hui Liangyu
Heads of selected state ministries & commissions
Ministry of Commerce: Bo Xilai
Ministry of Finance: Jin Renqing
Ministry of Foreign Affairs: Li Zhaoxing
Ministry of National Defence: Cao Gangchuan
State Development & Reform Commission: Ma Kai
Central bank governor
Zhou Xiaochuan
Political forces
Feb 9th 2004
From the Economist Intelligence Unit
Source: Country ViewsWire
The CCP
In June 2002 the CCP had 66.4m members, 5.2% of the total population, making it the largest political
party in the world. Only 11.6m (17.5%) were women; 4.1m (6.2%) were from ethnic minorities. The
membership is relatively old (77.7% of members are over 35), but 75% of the 11.9m new members
recruited in 1997-2002 were under the age of 35, and 78.6% of the new members had received
education at high-school level or above, which underlines the growing technocratic basis of the CCP
elite. By contrast, only 52.5% of the general membership have received high-school education. The
party claims that women accounted for 25.4% of new recruits in 1997-2002. Joining the party
traditionally offered the promise of both material and professional benefits, and is still important for
105
ambitious government officials. For the rest of the population, however, the attractions of party
membership are fading as the CCP loses the dominance in everyday life that it previously enjoyed.
The CCP's structure parallels and supervises that of the government and the legislature. Its main
decision-making body is the central committee. Currently having 198 full members and 158
alternate members, the central committee meets in plenary session about twice a year. In the
interim most of its power is vested in the politburo, which currently has 24 members. Above the
politburo stands the politburo standing committee (PSC), the most powerful political institution in
China, which currently has nine members. Membership of the central committee, the politburo
and the PSC are decided upon at the CCP's national congress, which is held every five years,
normally in the months preceding the first session of a new NPC. The most recent CCP National
Congress, the 16th, was held in November 2002.
Party secretariats and commissions
The apparently clear-cut line of pyramidal control within the CCP is complicated by its various
secretariats and commissions, as well as issue-based leading committees. The general secretary
is the party leader, following the abolition in 1980 of the post of chairman, and has the power to
convene politburo meetings. The central secretariat handles the day-to-day business of the party.
The Central Commission for Discipline Inspection, with responsibility for the internal discipline of
the party—and hence managing a strong network of informers, spies and personnel files—is a
particularly powerful body. Apart from the PSC, the work of the government is co-ordinated
through leading groups, which bring together senior officials to formulate policy on particular
issues. China thus has leading groups on foreign affairs and Taiwan.
Corruption among officials
Immediately after the government had embarked on a programme of economic reform in 1978,
the legitimacy of the CCP rose as the standard of living of ordinary people improved rapidly.
Since then, the popularity of the party has faltered. Endemic official corruption has been a major
cause of the party's popularity woes. In recent years the resultant discontent has been
exacerbated by economic changes that have led incomes in rural areas to stagnate, and by
government attempts to reform SOEs that have resulted in large numbers of lay-offs. In an
example of this disgruntlement, in March 2002 thousands of former state workers took to the
streets of two cities in China's north-east, complaining about the non-payment of welfare, income
and severance benefits, and the enrichment of party officials. These were perhaps the largest
worker-initiated protests in the history of the PRC. (Although involving some workers, the
momentum for the huge 1989 protests had been provided by students.)
Such social discontent clearly represents a serious challenge to CCP power. Officials have been
working to rationalise pension, unemployment and medical care systems, but the task is both
hugely complex and expensive, and so far they have made little more than a start. The
government has also been trying to stamp out graft. Orders to officials to refrain from many kinds
of economic activity are frequently reiterated. People who fail to meet standards of integrity are, in
theory, excluded both from CCP membership and from employment as officials—the party claims
that 124,000 members were expelled in 1997-2002. More senior officials are being convicted of
graft, and are being subjected to seemingly ever more serious punishments: in September 2000
the vice-chairman of the NPC, Cheng Kejie, was executed after being found guilty of corruption.
(Although not all executions are corruption-related, according to Amnesty International, a UKbased human rights watchdog, at least 1,060 people were executed in China in 2002, almost
70% of the 1,526 executions worldwide known to Amnesty.)
Given the problems in the state-owned sectors of the economy, lay-offs are likely to continue.
Graft will also persist because it is essentially the result of a half-reformed economic system and
106
a ruling party that is above the law—causes that the willingness of the authorities to arrest,
prosecute and sometimes shoot corrupt officials does nothing to address. Popular discontent is
therefore unlikely to disappear soon.
The PLA
The army was reduced in size in the 1980s, but following the bloody crackdown by the military on
popular demonstrations in 1989 the armed forces gained a greater political role. In the immediate
aftermath of the massacre there were reports that a number of generals had attended meetings
of the politburo, albeit in a non-voting capacity. The influence of the People's Liberation Army
(PLA, China's military) was still being felt several years later. China's large intimidatory military
exercises in the Taiwan Strait in 1995 and 1996 appeared to reflect the need of Mr Jiang and
other leaders to pander to the hawkish views of the military. An order issued by Mr Jiang in July
1998 for the military to give up its business empire suggested that the civilian leadership was
trying to reduce the direct political power of the PLA. The military is, however, unlikely to be
pushed out of politics completely; its profile and clout were raised by heightened tension with
Taiwan in 1999-2000. Ultimately the PLA's political power is guaranteed by its role as the
protector of party rule in China.
Control over the army is vested in two parallel commissions, the State Central Military
Commission (CMC) and the Party Central Military Commission. The bodies usually have identical
memberships, and meetings of the State Central Military Commission are rarely reported, leaving
no doubt as to where the real power lies. The chairmanships of the two commissions were the
last official leadership positions that Deng Xiaoping held until 1989-90, when he handed both jobs
to Mr Jiang. Mr Jiang's successor as CCP general secretary, Hu Jintao, is vice-chairman of the
CMC.
The ruling party's monopoly on political power
The CCP has tried hard to maintain China's monolithic power structure, leaving various
identifiable interest groups in effect underrepresented. Although there are national organisations
supposedly looking after the interests of women, farmers and workers, all are tame bodies pliant
to the will of the CCP. Even before the CCP mobilised against student protesters in 1989, it had
denounced as "counter-revolutionary" the independent trade unions that had sprung up during
the protests. The CCP remains nervous of any sign of organisation among workers, mindful of the
role of Solidarity in the downfall of Communist Party rule in Poland.
The party traditionally enforced social control and political discipline in large measure through the
pervasive role of the "work unit". State-owned factories provided not just a salary, but housing,
education and political indoctrination. The so-called neighbourhood committees, often composed
of retired workers, provided another mechanism of control in the cities, in such areas as family
planning and crime prevention. These systems of social control are, however, gradually breaking
down. This is partly the unintended result of government policy, as the government pursues
structural reform of the SOEs. It is also because greater social mobility and the aspirations
stimulated by 20 years of strong income growth have made people less susceptible to constant
surveillance.
Organised dissent or questioning of the CCP's right to rule is not tolerated. Any form of
organisation that can mobilise large numbers of people is regarded as threatening. This remains
true even 50 years after the founding of the PRC. For example, after 10,000 of its adherents
protested in Beijing in 1999, a spiritual group, Falun Gong, was outlawed as an "evil cult", and
has since been subjected to a fierce campaign of repression. Political leaders accept that vocal
resistance to the process of reform by SOE workers who have lost jobs is inevitable, but any
107
attempt to organise such protests is treated harshly. The globalisation of information through the
Internet is also seen as a potential threat, and access to Internet sites is censored, as are the
national media. Separatist aspirations in Tibet, or among the Muslim Uighur population centred in
Xinjiang in the west, are also suppressed. The rise of radical Islamist movements in central Asia,
which might lend support to Uighur separatists, is a serious concern, and this explains China's
support for the US-led "war against terrorism".
Decentralisation of power
Although the CCP reacts strongly to the growth of regional independence movements, local
governments have at times in the last 50 years gained some degree of autonomy. Given China's
topography—the PRC is almost as big as the US, and some provinces have populations as large
as those of significant countries—this is perhaps not surprising. The attitude of the central
authorities in Beijing has also been important. During the 1960s and 1970s attempts by Mao to
"unleash the masses" led to decentralisation, but the chaos that ensued inevitably meant that
these phases were followed by periods of recentralisation.
Since then there has been a more consistent trend of decentralisation, as resource mobilisation
powers and spending responsibilities have been devolved to local governments. Local
governments have also increasingly become entrepreneurs and major stakeholders in local
enterprises, seeking to maximise employment and revenue-raising opportunities in the areas
under their jurisdiction, regardless of the policy instructions of the central government. The central
government is far from powerless: it can still exercise considerable influence through its ability to
appoint and remove leading local officials, and provincial governors are frequently reshuffled to
prevent the emergence of a localist challenge. Moreover, the centre can usually win compliance,
albeit sometimes reluctant and slow, with its main policies. However, some observers argue that
devolution is irreversible and that, given the size and diversity of the country, the government will
eventually have to be reorganised along federal lines.
Economic structure
Feb 9th 2004
From the Economist Intelligence Unit
Source: Country Profile
Main economic indicators
2002
Real GDP growth (% change, year on year)
8.0
Consumer price inflation (av; %)
-0.8
Current-account balance (US$ bn)
35.4
Exchange rate (av; Rmb:US$)
8.28
Population (year-end; bn)
1.3
Sources: National Bureau of Statistics, China Statistical Yearbook 2003; IMF, International
Financial Statistics; Economist Intelligence Unit, CountryData.
More economic data
Industry has a dominant role
Even before the programme of economic reform and opening began in the late 1970s, the
Chinese economy was characterised by the unusually large share of industrial production in
gross output value: in 1979 industry accounted for almost 50% of officially measured GDP. This
was particularly striking because so much of the workforce remained on the land. Reforms in the
early 1980s initially increased the relative share of the agricultural sector. Driven by a sharp rise
in the procurement price paid for crops and what amounted to the semi-privatisation of agriculture,
the share of agricultural output in total GDP rose from 30% in 1980 to 33% three years later.
108
Since then, however, the share of agriculture has fallen fairly steadily, and by 2002 it accounted
for only 15.4% of GDP. During the 1980s, as agriculture's share in GDP fell, that of the growing
services sector rose: the share of tertiary industry in total output increased from around 21% of
GDP in 1979 to over 30% ten years later. The relative share of the services sector has since
remained steady, and the continued shrinkage in the relative contribution of agriculture has been
reflected in a larger share for the industrial sector, which in 2002 accounted for around 51.1% of
GDP.
The increasing role of private and collective enterprises
The structure of China's secondary industry changed fundamentally during the 1980s. Until 1978
output was dominated by large state-owned enterprises (SOEs). Since then much of the boom in
manufacturing output has been produced by "collective" enterprises under the aegis of local
governments—particularly the township and village enterprises (TVEs)—or, increasingly, by
private entrepreneurs or foreign investors, either in wholly owned enterprises or in joint ventures
with Chinese interests. By 2002 the share of state-owned and state-holding enterprises in gross
industrial output value had shrunk to 41%. However, state-owned companies, controlled by
economic ministries in Beijing, taken in isolation represented only 16% of industrial output. Stateholding enterprises may control large numbers of state firms, and are not 100% state-owned.
Comparative economic indicators, 2002
China
India
Japan
Germany
US
GDP (US$ bn)
1,266
502
3,973
1,994
10,446
GDP per head (US$)
974
480
31,270
24,211
36,406
GDP per head (US$ at PPP)
6,033
2,620
26,739
26,663
36,406
Consumer price inflation (av; %)
-0.8
4.3
-0.9
1.4
1.6
Current-account balance (US$ bn)
35.4
4.7
112.5
46.6
-480.9
Current-account balance (% of GDP)
2.8
0.9
2.8
2.3
-4.6
Exports of goods fob (US$ bn)
325.7
52.7
395.6
615.0
681.9
Imports of goods fob (US$ bn)
281.5
65.2
301.8
492.8
1,164.7
Source: Economist Intelligence Unit, CountryData.
109
China's politics
Aug 19th 2005 From Economist.com
The Chinese Communist Party (CCP) has governed China since 1949. Deng Xiaoping, who led
the party—and therefore China—from 1978 to 1997, began a policy of “socialism with Chinese
characteristics”, encouraging more economic openness and foreign trade. But the CCP retains an
iron grip on politics: other parties are outlawed and criticisms are quickly suppressed.
When Deng died in February 1997, Jiang Zemin and Zhu Rongji came to power as president and
prime minister respectively. They oversaw China's reunification with Hong Kong in July 1997 and
its joining of the World Trade Organisation in 2001. But repression of dissent continued,
especially of the Falun Gong movement. Zhao Ziyang, an economic reformer who had protested
against the use of force on Tiananmen Square demonstrators in 1989, remained under house
arrest until his death in January 2005.
At the 16th Party Congress in November 2002 Hu Jintao was named leader of the CCP and Wen
Jiabao prime minister. Mr Hu, originally thought to be a potential reformer, has proved more
authoritarian, slowing down economic reforms and cracking down on the press.
China's president is increasingly revealing himself to be an authoritarian. We
report how in this article, and in another
IN THE nearly three years since Hu
Jintao assumed the leadership of the
Chinese Communist Party, his image
has changed markedly. Mr Hu was
once seen by many as a potential
liberal reformer—admittedly an
assessment drawn from limited
evidence. Now, he is widely regarded
as a conservative authoritarian. Many
Hu-watchers had seized on signs that
he might be determined to open up
China's secretive bureaucracy. Now,
he is said to be holding up Cuba and
North Korea as examples of how the
party should keep its ideological grip.
While Mr Hu has probably changed
far less than his mercurial portrayal
might suggest, it is increasingly clear
that China under his leadership has
wavered over economic reform and
shunned political liberalisation.
Mr Hu's (in fact, fairly consistent) conservatism has been evident in his belief that the Communist
Party, riddled with corruption and other abuses of power, is quite capable of cleaning up its own
act without the need for any checks or balances. This year, for instance, he has ordered millions
of party officials to take part in many hours of mind-numbing ideological training designed to
tighten party discipline (known as the “education campaign to preserve the advanced nature of
Communist Party members”).
More seriously, advocates of bolder economic reform have worried about a campaign against
“neo-liberal” economic theories that sputtered into life early last year. This apparently stemmed
from the worries of party leaders, including Mr Hu, that the cause of free markets and small
government could, if given too free a rein, cause an economic meltdown in China similar to that
seen in some Latin American countries. On the orders of senior officials, the Chinese Academy of
Social Sciences formed a research team and in June last year published a book of essays that
proclaimed on its cover that Latin America and the Soviet Union had been “major disaster areas
of neo-liberalism”. It said reforms of state-owned industries should be guided by “Marxist theory”.
110
Publicly, Mr Hu's comments have been moderate in tone. But he has been tougher at closed-door
gatherings, such as during a meeting of the party's Central Committee last September. The
plenum was of crucial symbolic importance for Mr Hu. It appointed him as the supreme
commander of China's armed forces, thus completing his takeover of the country's three top
positions, following his appointment as party leader in November 2002 and president in March
2003. The contents of Mr Hu's maiden speech have not been published in full. In the still secret
portion, Mr Hu reportedly railed against “Western hostile forces” and “bourgeois liberalisation”. It
was a worrying throwback to the paranoid language that suffused official rhetoric in the wake of
the Tiananmen Square protests of 1989.
Yu Jie, a dissident writer in Beijing, says the authorities have stepped up harassment of liberal
intellectuals in recent months. Dissidents who have expressed their views online have been
particular targets. Mao Yushi, a liberal economist, says public discussion meetings held by his
privately run public-policy think-tank, Unirule, have been banned, as have his writings. Unirule
has been stripped of its official registration.
Cao Siyuan, another liberal economist who runs a private consultancy, says the attacks on neoliberalism have coincided with a marked slowdown in the pace of state-owned-enterprise reform.
He points to a campaign this year against management buy-outs of such enterprises, a once
common form of privatisation in China. The government feared the practice was leading to
rampant asset-stripping and was fuelling public resentment. Mr Cao, whose calls for political
reform have earned him constant surveillance by the police (he skilfully evaded them to meet
your correspondent), says the drawbacks of management buy-outs have been exaggerated by
conservatives.
Yet for all Mr Hu's rhetoric, he has yet to strike out at perceived wayward tendencies with
anything like the vigour shown by Mao Zedong, Deng Xiaoping or even Jiang Zemin, whose
crackdown on Falun Gong, a spiritual movement, in 1999 sent many thousands to labour camps.
The complaints of Beijing's intellectuals are offset by other signals that China's economic reforms
are continuing, even if government enthusiasm for the kind of mass privatisation of state-owned
enterprises that occurred in the late 1990s and early this decade may have abated. In February
the government issued new guidelines for private investment in areas hitherto the preserve of the
state. This month it issued a draft of China's first law on property rights, aimed at protecting
individuals and companies from arbitrary appropriations by the state. Many say the new law is
inadequate, but it is still something of a concession to a growing middle class.
Even in the realm of privatisation, the government continues to experiment. In May, a new
attempt was launched at off-loading state-owned shares in the 1,400 companies listed in China's
stockmarkets. The government has indicated that the reform plan will not mean selling off its
controlling stake in “key enterprises”. But it will relinquish at least some of its firms.
Given the increasingly conspicuous inequalities emerging in China as a result of the country's
embrace of capitalism, it suits Mr Hu to appear to pour cold water on the idea of laisser-faire
economics, blamed for a growing gap between rich and poor, between regions and between
urban and rural areas. In the past couple of years there has been an upsurge in the number of
protests triggered by these disparities, as well as by rampant corruption. Mr Hu is trying to
strengthen the party's legitimacy by stressing its sympathy for the disadvantaged.
Mr Hu's catchphrase is “balanced development”. This will be a central theme in a new five-year
economic plan (a still cherished relic of the central-planning era) due to be discussed by the
Central Committee in October and ratified by the legislature next March. It will be Mr Hu's first
opportunity to put his stamp on a long-term economic strategy. But rapid growth will remain his
first priority. Mr Hu has shown no sign of retreat from the core belief of party leaders since the
early 1990s: that growth is essential to social stability and thus the party's survival. If
redistributing wealth were to jeopardise that, even the conservative Mr Hu would back off.
111
WEDNESDAY, AUGUST 17, 2005
International Herald Tribune, Opinion
http://www.iht.com/articles/2005/08/16/opinion/edteo.php
By Eric Teo Chu Cheo
China's leaders begin a crucial debate
SINGAPORE The world's attention has been focused on China in the past month because of the
aborted bid by China National Offshore Oil Corp. to take over the American company Unocal, and the
July 21 "repeg" of China's currency, the yuan. But three other recent developments are much more
important, because they provide subtle signals that a major debate has started within the Beijing
leadership on China's social, economic, cultural and political future.
On July 28, the People's Daily ran a front-page commentary warning Chinese citizens to obey the law,
saying that any threats to social stability would not be tolerated by the authorities. This editorial could
have been aimed to deter anti-Japanese protests in the period leading up to commemorations of the
60th anniversary of the end of the Pacific War. But curiously, and significantly, it omitted the term
"harmonious society" - President Hu Jintao's populist catch-phrase for the effort to correct the lopsided
excesses and widespread corruption resulting from China's rapid development. Moreover, the editorial
surprised many by its stance that widening inequality is an inevitable phase of development.
On Aug. 3, the Culture Ministry's Web site announced that Beijing would bar new foreign television
channels from entering China and step up censorship of imported programming, in order to "safeguard
national cultural safety." This announcement, backed up by a statement from the official Xinhua News
Agency, could be perceived as a further tightening of popular culture in an effort to keep out liberal
Western materials that could be politically and socially dangerous for Beijing.
Then on Aug. 5, Health Minister Gao Qiang was quoted in the China Daily criticizing China's hospitals for
being greedy and putting profit ahead of their social function, thus adding to the burdens on patients and
undermining the image of medical personnel and public health departments.
These three statements are an indication that the authorities no longer refuse to discuss China's growing
social instability in public. Key officials in the Chinese government have lately expressed their concern
about this instability, in the face of an increasing number of public protests and a widening rich-poor gap
in a country that is still officially Communist.
The People's Daily commentary is particularly significant, as it signals a debate among China's leaders
on whether to allow continuous rampant growth and economic liberalization, or to promote greater
equality and redistribution in China, which historically has been wracked by social upheaval.
The People's Daily commentary echoes liberal economists and politicians who argue for a continuous
push toward "kai fang," or opening up, of China's economy and society along the lines of World Trade
Organization tenets. Their argument is based on the fact that if the Chinese economy does not produce
at least 8 percent growth per annum (based on at least $40 billion of annual foreign direct investments),
the urban unemployment problem could rise to levels that would jeopardize social stability.
This liberal school, which hitched onto the WTO bandwagon under the patronage of former Prime
Minister Zhu Rongji, believed China should aim to become a developed economy in 50 years' time. The
People's Daily commentary reflects this school of thought, which considers that a widening revenue gap
- and hence some inequality - is indispensable in pursuing economic development.
China's "socialist economists," on the other hand, have begun to criticize China's current rampant
development, questioning the need to accumulate more than $700 billion of foreign reserves at a time
when social imbalances are increasing at an alarming rate.
Senior officials within the State Council, Finance Ministry and the Chinese Academy of Social Sciences
have begun to warn of the need for a more social approach to maintaining stability, emphasizing social
112
justice - including the authorities' battle against corruption - and redistribution to dampen widening
disparities. The health minister's criticism of the public service's "profit-chasing" ethos is a reflection of
this school of thought.
The Culture Ministry's regulations, for their part, indicate that the authorities may encourage a more
nationalistic, less liberal, less Western cultural model.
These signals point to the tension that currently underlies Chinese society. There is clearly a growing
contradiction between the ideological tenets of the Communist Party and Deng Xiaoping's philosophy
that "to grow rich is glorious." This ideology-versus-economics debate will ultimately determine the
direction of China in the next decades, as social tensions increase in a society that is revolutionizing
much faster than Western societies have in the past century.
This growing debate could accelerate in the lead-up to the 17th Party Congress in autumn 2007, at
which President Hu and his team are expected to fully consolidate their power. Potential rivals of Hu
could exploit this debate to challenge his power, especially if the Chinese economy falters or social
stability deteriorates.
This socio-ideological debate is critical not only for China but also for the rest of Asia, where a new
socioeconomic model of development may emerge to "complement" the continent's expected rise this
century.
As the winds of change sweep through China, it is this philosophical and social debate - and not the
yuan revaluation or the Unocal debacle - that will ultimately determine the direction of China's economy
and society, as well as its "peaceful rise" and its continuous social revolution.
Asia and the world should pay more attention to this fundamental debate, which could also determine
the outcome of Hu's political position at the 17th Party Congress and hence the ultimate stability of Asia's
rising dragon.
(Eric Teo Chu Cheow, a business consultant and strategist, is council secretary of the Singapore
Institute for International Affairs.)
113
People’s Daily Online, August 15, 2005
http://english.people.com.cn/200508/15/eng20050815_202556.html
Adapted from Jerome A. Cohen's statement for the Congressional-Executive Commission on China
Hearing, July 26, 2005. Jerome A. Cohen is Professor of Chinese Law, New York University; Adjunct
Senior Fellow on Asia, Council on Foreign Relations; a director of the National Committee on US-China
Relations. Mr. Cohen also was Professor, Director of East Asian Legal Studies, and Associate Dean,
Harvard University Law School (1964-81).
China's legal system in transition
I am pleased that the Commission has chosen to focus today on law and legal institutions in the
People's Republic of China (PRC). Our media have understandably shown increasing interest in the
political, economic and military aspects of China's rapid modernization. Yet too little attention has been
paid to the role of the legal system.
OVERVIEW
In December 1978, when the Chinese Communist Party's new leadership under Deng Xiaoping
announced the "Open Policy" that launched the country's impressive modernization program, it also
recognized the importance of constructing a legal system commensurate with China's new ambitions. At
that time, the Soviet-type legal system that the PRC had adopted in the early 1950s lay in tatters, a
victim of twenty years of political turmoil that had culminated in the Cultural Revolution, whose spirit was
encapsulated by a People's Daily editorial entitled "In Praise of Lawlessness"!
The new legal system was to fulfill many functions. It would provide for the orderly and efficient conduct
of government not only at the central level but also at the provincial and local levels of a vast land and
population. It would facilitate domestic industrial and commercial development and international trade
and investment. And it would suppress what was deemed to be antisocial behavior, while assuring
greater fairness and accuracy than had prevailed in the administration of justice during the three
preceding decades of Communist rule.
At the time, only a quarter century ago, China displayed virtually none of the indicia of a formal legal
system. Its Constitution was merely an unenforceable collection of political slogans and general
principles. It had few useful laws and even fewer bilateral or multilateral agreements with other countries
to offer guidance on legal problems. The National People's Congress (NPC), nominally the country's
highest government authority, was in the process of resurrection. The courts were a shambles. The
procuracy, which is responsible for criminal prosecutions and is supposed to serve as the "watchdog of
legality", had been non-existent for twelve years, and Chinese lawyers for over twenty. China's Sovietstyle commercial arbitration institutions were not suitable for settling disputes with Western companies,
and legal education and publications were only beginning to revive.
Today, China plainly has a formal legal system, one that, from the perspective of a generation ago, can
be seen to have made significant progress. An increasingly robust National People's Congress and its
Standing Committee have enacted a huge amount of legislation on topics of all description. These laws
have been supplemented by myriad regulations of the State Council, China's leading executive
institution, and the central ministries and commissions under it, as well as provincial and local people's
congresses and governments. The Supreme People's Court (SPC) and the Supreme People's
Procuracy are both now vigorous organizations, although, like the State Council, they are subordinate to
the NPC. They too have issued large numbers of "interpretations" and other documents, either
separately or with each other and with other agencies, that are the substantive equivalent of
supplementary legislation. The PRC has also concluded with other governments a large number of
bilateral agreements bearing upon the domestic legal system and now adheres to many multilateral
treaties concerned with international business law and human rights.
China today has a nationwide court system including over 3,000 basic courts and almost 200,000 judges.
The task of forging this huge and inexperienced group, originally staffed mostly by former military and
114
police officers without legal education but now increasingly recruited from law school graduates, into
professionally competent, honest, impartial and independent decision-makers is formidable. To do so
the Supreme People's Court has labored mightily, within the confines of Party policy and the SPC's
limited political power.
Much the same can be said about the procuracy. It now has almost as many legal personnel as the
courts and is recruiting more and more law graduates. Lawyers, reestablished in 1980 and currently
numbering approximately 120,000, play an increasingly important role in China's cities, especially in civil
and business transactions. Their ranks too are strengthened each year by thousands of new law
graduates, who now have to pass, together with would-be judges and procurators, a challenging unified
bar examination, with a pass-rate, last year, of only slightly over 11%. Legal education has become one
of the fastest-growing branches of Chinese academic life, and the country now has almost 400 law
schools of various kinds.
Moreover, legal scholarship has flourished in recent years. Bookstores that never before had a legal
section or even a shelf devoted to law are now filled with collections of laws and analytical treatises and
teaching materials on all subjects. They also carry "how to do it" self-help manuals on many topics such
as civil and administrative law procedures, tax law and real estate transactions, for those who do not
have access to or wish to avoid lawyers. There are now over 90 law magazines, rife with law reform
proposals. Within the limits of Party policy, which fluctuates with the time, place and topic, the Internet
has spawned nationwide legal discussions. It makes available information and views about law that
newspapers and television, also under Party control, may have slighted.
Legal developments relating to foreign trade, technology transfer and investment have led this progress.
During the decade prior to the 1990's, the PRC's desire for foreign direct investment stimulated the
steady creation of a useful legal framework. The PRC's opening of capital markets in the early 1990s
initiated a new wave of financial legislation and regulation, and its 2001 entry into the World Trade
Organization has produced a host of substantive and institutional reforms that should continue for some
time. China's international commercial arbitration organization is now the world's busiest, and almost 200
cities have established their own arbitration commissions to handle domestic and foreign-related
disputes.
The development of law and legal institutions has contributed to a burgeoning popular awareness of law
and indeed "rights consciousness". Profound social and economic change has fostered this trend. An
economy formerly dominated by state-owned enterprises and the "state plan" is now increasingly free,
transactional/contractual and open to private entrepreneurs. A society that was once one of the world's
most egalitarian now features accumulations of wealth that have created one of the world's biggest gaps
between rich and poor. Much of this wealth has been created by collusion between government officials,
still in command of land and other resources, and corrupt entrepreneurs. This, in turn, has generated not
only demands for the protection of the personal and property rights of the successful but also even
stronger demand for such protection from losers in the ongoing socio-economic transformation, who
desperately seek legal remedies to alleviate perceived injustices. Women, minorities, the disabled and
other victims of discrimination invoke China's Administrative Litigation Law and related legislation to
challenge arbitrary official action. Farmers strive to use the courts to stop unfair official land requisitions
or financial impositions by local cadres, and urban residents try to rely on the law to prevent developers
and city officials from demolishing their housing without adequate compensation.
Too often such efforts fail. Legislation is frequently inadequate, and many conflicts between national and
local norms, and the proliferation of regulations, interpretations and other edicts often produce
incoherence and inconsistency. There are too few able lawyers, and those who are not afraid to
undertake sensitive cases sometimes lose their license to practice law or are detained and punished for
"damaging public order" and similar offenses. Judges are often vulnerable to corruption, political control
and the pressures of "guanxi" (social connections based on family, friendship, school or local ties). Since
their appointment, promotion, assignment, compensation and removal are all at the pleasure of local
government and Party leaders rather than the Supreme People's Court or provincial High Court, they
and the litigants who appear before them are subject to the abuses of "local protectionism". Even PRC
arbitration, to which many foreign businesses and Chinese turn in an effort to avoid the vagaries of the
115
courts, sometimes suffer from the same types of pressures that distort judicial justice. Prosecutors, who
are supposed to guard against such illegal conduct, are usually too weak politically and plagued by their
own vulnerabilities to remedy the situation.
CRIMINAL JUSTICE
The weakest link in the PRC legal system is criminal justice. The codes of criminal procedure and
criminal law, first enacted in 1979, three decades after the founding of the PRC, and revised in 1996 and
1997, respectively, lend themselves to abuse by law enforcement authorities. The PRC is, of course, far
more notorious than the United States for its resort to the death penalty in many thousands of cases
each year, with no fewer than 68 statutory provisions authorizing executions. The Chinese Government
is so embarrassed by the number of executions it carries out that the precise figure is one of its most
closely-guarded secrets.
The Criminal Law is so broad and vague regarding both the conduct it prohibits and the punishments it
prescribes that severe sentences on unapproved activity can be imposed. Although
"counterrevolutionary" conduct is no longer prohibited, its prohibition has been replaced by the equally
imprecise crime of "endangering state security", which is often invoked. Moreover, the courts, and those
Party and government leaders who dictate court decisions in sensitive cases, are free under the law to
impose the harshest sentences "if the circumstances are serious" and especially "if the circumstances
are especially serious."
The protections afforded by the Criminal Procedure Law (CPL) are too few, ineffectual, and riddled with
exceptions to permit meaningful defense. When police or prosecutorial investigators wish to detain a
person, they can do so on their own, without the approval of any outside agency. They need not notify
the suspect's family or work unit of the detention, the basis for it or the suspect's location if, in their
opinion, to do so might interfere with the investigation. In most PRC criminal cases the suspect is denied
"release under guaranty pending trial", the Chinese equivalent of bail, again a decision made by the
investigating agency alone. Nor do the investigators need outside approval if they decide to search the
suspect's residence, office or car.
If the suspect's family can afford a lawyer to advise him, the lawyer can be prevented from meeting his
client for the entire investigation period, which can last for months or even years. The suspect has no
right to silence and reticent suspects are frequently subjected to punishment. Moreover, a feature of
PRC criminal investigation is the inability of the suspect, his lawyer, family or friends to challenge the
legality of any official actions before an independent tribunal or other agency. Any attempt to obtain
administrative reconsideration of investigators' decisions by their higher authority is usually fruitless.
Trial has its own frustrations for the defense. Witnesses rarely appear in court. The prosecution simply
reads out their written statements, thereby depriving the accused and his lawyer of the opportunity to
cross-examine them granted in principle by the 1996 CPL revision. Rules of evidence are rudimentary,
and illegally-obtained evidence is often admitted in practice. Defense lawyers must be careful during trial,
as well as during earlier stages of the process, not to alienate prosecutors, who have the power under
Section 306 of the Criminal Law, a provision aimed squarely at lawyers, to prosecute them for assisting
in the falsification of evidence.
LAW REFORM PROSPECTS
Yet we can expect robust law reform efforts to continue in China, even in the field of criminal justice. The
PRC is still considering whether or not to ratify the International Covenant on Civil and Political Rights
(ICCPR), which it signed in 1998. Ratification would commit the PRC to changes in law and practice in
the criminal justice area as profound as those changes in economic law and practice required by the
PRC's entry into the WTO. Regardless of ICCPR ratification, the Chinese Government has already
made clear its determination again to revise the CPL. Although optimists predict that the newly-revised
CPL might appear by next year, we should not underestimate the magnitude of the task. A multitude of
controversial issues awaits the NPC, and achieving a meaningful reconciliation of the conflicting views
by academic experts and relevant organizations will require enormous legislative skill, time and energy.
116
Pending comprehensive revision of the CPL, the NPC may decide to make certain urgently-needed
reforms earlier, for example, "reeducation through labor"? Perhaps we can also expect an expanded role
for the courts, and further strengthening of the courts and the legal profession in order to enable the
courts to play this expanded role. The Chinese Government is plainly facing a domestic crisis of
confidence caused by the failure of its institutions to deal adequately with a rising tide of public
grievances relating to environmental pollution, real estate manipulation, unauthorized local financial
demands, corruption, discrimination and other official abuses.
Thus it would be logical for the PRC leadership to try to lift local courts from the mire of "local
protectionism" by placing the power to appoint, promote, assign, compensate and remove basic and
intermediate court judges in the Supreme People's Court or the provincial High Courts so that local
judges would become more responsive to national needs rather than local pressures. It would also be
helpful to review the current criteria for compensating, assessing, promoting and removing judges.
Similarly, we might expect enlightened leaders to sympathize with the growing consensus, at least
among lawyers and scholars, that Section 306 of the Criminal Law should be repealed, in order to
encourage more lawyers to take part in and vigorously defend criminal cases, and to try to channel
public disputes into the courts instead of the streets.
EMERGING CONSTITUTIONAL LAW
The most interesting development in Chinese law at this time is the gradual emergence of constitutional
law as a genuine subject and a factor to be reckoned with in Chinese politics and government. Although
the PRC has had several constitutions in its 56 years, until recently few individuals or groups took
seriously the idea that the provisions of the Constitution might actually be enforceable, whether through
the NPC or the courts.
As we have seen, in the PRC system, following the Soviet model, the national legislature, the NPC, is
the single supreme power, and all other government institutions--executive, prosecutorial and judicial-are subordinate to it. Under this arrangement, the power to interpret and apply the Constitution is lodged
in the Standing Committee of the NPC, not in the courts. The accepted view was that the Constitution
recorded the nation's and the regime's basic principles, outlined the government structure and set forth
the rights and duties of citizens. It served many purposes--as national symbol, ideological rallying point,
educational instrument, policy vehicle and propaganda tool--but was not generally thought to be the
source of enforceable legal rights. Recently, however, as a consequence of rising rights consciousness,
reflected in and further spurred by constitutional amendments mandating respect for human rights and
property rights, the idea of translating the promises of the Constitution into real life began to attract
China's expanding legal community.
An important stepping stone toward the present was the enactment in 1989 of the Administrative
Litigation Law, which for the first time made the legality of a broad range of concrete official decisions,
but not abstract legislation or regulations, subject to judicial scrutiny. The concept that government itself
should be under the law--and not merely use the law as an instrument of its will--was strengthened by
the subsequent adoption of several other laws, especially a State Compensation Law offering limited
redress, again through the courts, for certain wrongs inflicted by officials.
But, without a constitutional amendment or at least authorizing legislation, could the courts, which are
subordinate to the NPC, also begin to enforce constitutional rights and, if so, to what extent? Could
ordinary legislation authorize Chinese judges to invalidate on constitutional grounds abstract regulations
and even laws of the NPC itself as well as concrete administrative decisions? If judicial review of the
constitutionality of legislation and regulations seemed out of the question without a constitutional
amendment and if such an amendment was impossible to achieve in the current political climate, would
there be any better chance of acceptance for a constitutional amendment that would establish a
separate and independent Constitutional Court to deal with such questions, along the lines of the
German model that influenced Taiwan and the Republic of Korea? Many reformers believed that realism
called for building on the existing constitutional structure by having the NPC prescribe procedures that
would facilitate efforts to invoke the dormant constitutional decision-making power of the NPC Standing
117
Committee, and, with little fanfare, that was accomplished as part of the Law on Legislation adopted in
2000.
This new procedure has actually begun to be used, and in a dramatic fashion that captured public
attention. When in 2003 a hapless university graduate named Sun Zhigang died in police custody, the
media and internet ignited a storm of protest against the long unpopular State Council regulation on
"shelter and repatriation" of migrants under which Sun had been detained. Three courageous law
professors then petitioned the NPC Standing Committee to invalidate that regulation as unconstitutional.
By swiftly revoking the regulation, however, the State Council moved to avoid the necessity for a
constitutional decision by the NPC Standing Committee. This disposed of the immediate constitutional
challenge, but it also vividly demonstrated to the country that a new legal weapon had entered the
political arena.
Anticipating a flood of similar petitions relating to other grievances, the Legal Work Committee of the
Standing Committee established a special office within the Legal Work Committee to give preliminary
scrutiny to claims that government regulations violate the Constitution and should therefore be
invalidated by the Standing Committee. Since then, although the petitioning process remains cloaked in
obscurity, a series of complaints has reportedly been filed with the Standing Committee against various
State Council regulations. Literally tens of thousands of Hepatitis B carriers claimed that civil service
regulations unlawfully discriminated against them. Female civil servants petitioned to invalidate the
requirement that women retire five years earlier than men, and thousands more have challenged
national and local regulations authorizing demolition of their housing. These complaints have not yet
resulted in a constitutional decision by the Standing Committee but they have spurred administrative
reforms and added to popular support for the concept of constitutionalism.
While popular demands are compelling the NPC Standing Committee to inch forward in the
development of a mechanism for reviewing the constitutionality of administrative regulations, if not yet
legislation, they are also beginning to stimulate the courts to reconsider their long-held view that judges
cannot refer to constitutional rights even in deciding cases in which plaintiffs are only seeking relief
against concrete administrative acts or private wrongs. The Supreme Court led the way for the lower
courts in its landmark 2001 interpretation approving reference to the constitutional right to education as a
basis for awarding the plaintiff relief against both a private party and a government agency in a suit that
was not brought to invalidate a law or regulation but to establish the liability of the defendants. The trial
courts have since begun to grapple with a range of anti-discrimination complaints brought to challenge
concrete administrative actions against individuals. On at least two occasions the bringing of a suit
alleging denial of equal protection of the laws resulted in termination of the challenged conduct, even
though the court ultimately dismissed the claim as not among those authorized for adjudication under the
Administrative Litigation Law. In two other cases the court apparently granted relief to plaintiffs without
clearly indicating its reliance on the constitutional claims made.
Plainly, this is an area that is only beginning to emerge, and the task of the foreign observer is not made
easier by the limits of the PRC system for reporting judicial decisions, which makes it difficult to learn
about and obtain court judgments. Yet, at this early stage, one might wonder why, in view of the SPC's
2001 education case interpretation, lower courts seem reluctant to base their decisions on constitutional
rights in concrete cases that do not attempt to invalidate legislation or regulations. If, for example, gender
discrimination claims are not deemed to fall within those that can be asserted under the Administrative
Litigation Law, they plainly are covered by the Constitution's requirement of equal rights for men and
women, not to mention the Marriage Law and other legislation. So long as the courts do not tread upon
the exclusive prerogative of the NPC Standing Committee to review the validity of legislation and
regulations but stick to the task of settling disputes about concrete administrative or private actions--a
task that no one believes the NPC Standing Committee will ever take on--why should the courts deny
Chinese citizens the benefits of their Constitution while nevertheless consulting lesser sources of law?
Will the judiciary respond in a creative way to the challenges presented by an increasingly litigious
society? Much depends on whether the Party leadership has the wisdom and vision to appreciate the
contribution that able and imaginative judges can make to stabilizing a country that is seething with
injustice. I am confident that the quality of the judges is improving, as one recent statistic suggests. A
118
decade ago only 10,000 judges in the country, a mere 6.9% of the total at that time, had received an
undergraduate education of any kind. Today, over 90,000 judges have reached that level, some 51.6%
of the current total, and this trend toward greater education, increasingly legal education, will continue.
CONCLUDING REMARKS
I hope that enough has been said to suggest some of the progress, problems and prospects of law
reform in China.
Looking to the future, would it be feasible for the PRC to establish an independent constitutional court
despite China's uncongenial traditions for it? Taiwan shares those traditions, of course. Yet the recent
example of its Council of Grand Justices suggests that, given the political will, a constitutional court could
function successfully in Chinese mainland also.
Can the PRC create a judiciary that is politically independent, free of corruption and "local protectionism",
and immune to the distortions of "guanxi" (connections)? How is it possible to create a professional elite,
including lawyers, that has actually begun to take legal ethics seriously, even while the political process
is still awash in corruption? The PRC may not like the answers to such questions, but should pursue
them.
Would Chinese criminal investigators be able to do their job if their powers to search, arrest and detain
become subject to review by an independent court? What would be the impact of granting Chinese
suspects a right to silence? What effective measures might be taken to enforce the PRC's existing, but
often ignored, prohibitions against police torture and coerced confessions? Should lawyers be allowed to
begin defending their clients during the often lengthy criminal investigation stage?
Perhaps most innovative and daring is to improve the fairness and accuracy of criminal trials by adapting
a kind of adversary system---minus the jury trial---to local needs. This has produced formidable
challenges: How to cross-examine witnesses in open court and deal with other complex evidence
problems? How to change the roles of prosecutor, defense lawyer and judge to break the mold of the
traditional continental European model? PRC reformers are increasingly aware of the extent to which the
continental European criminal procedures on which their system has also been based have themselves
become more "adversary" in nature especially in the post-World War II years. They now confront the
difficult issue of how far to follow through on the PRC's own considerable flirtations with the adversary
system. Before making their decision on this major issue, it would seem highly desirable for them to take
account of how a similar effort is faring in a legal environment much more similar to the PRC's than that
of Europe.
Of course, as previously noted, China's long struggle to attain a civilized system of criminal justice is
significantly undermined by the continuing power of the police to avoid the criminal process entirely by
consigning people to as much as three or four years in "reeducation through labor". The PRC would do
well to cope with this problem by learning from other nation's and region's long efforts,
On the basis of the above remarks, I urge the CECC to endorse not only the continuing support of the
Congress and the Executive Branch for rule of law-related cooperation with PRC lawyers, judges,
prosecutors, officials and scholars but also the commencement of our government's support for research
on the development of the rule of law in East Asia and its relevance to law reform in the PRC.
119
China to amend law on administrative procedure
www.chinaview.cn 2005-08-22 15:32:17
BEIJING, Aug. 22 (Xinhuanet) -- China plans to amend the Administrative Procedure Law within five
years, said an official with the Commission of Legislative Affairs of the National People's Congress (NPC)
Standing Committee.
At a symposium of Beijing Lawyers' Association on Sunday, Li Yuan, head of the Administrative
Procedure Law Office under the Commission of Legislative Affairs of the NPC Standing Committee, said
suggestions are being collected from experts on the amendment of the law.
Experts suggested that the Administrative Procedure Law should be increased from current 75 articles
to 198 articles, and the court should have rights to final jurisdiction on administrative disputes, according
to Li.
China's Administrative Procedure Law, adopted in 1989, has enabled citizens to sue the governments
and their departments at all levels if their rights or interests were violated by administrative decisions or
moves.
People used to be afraid of the government or were unwilling to sue it. Some even resorted to revenge
or extreme means to seek justice. But now, a growing number of Chinese are aware of defending their
legitimate rights and interests with law.
Experts proposed that government documents and regulations should be under judicial review. Chief
officials or the lawsuit agent of government departments should appear in court.
At present, the Administrative Procedure Law forbids intermediation in the lawsuit against government.
Experts said intermediation should be allowed so long as it does not violate laws and infringe upon
other's interests.
Experts also suggested that citizens may sue the governments in other places to solve the problem of
local protectionism.
In addition, chief officials of the government departments should shoulder the legal responsibility if court
sentence is not executed, said experts.
120
8/13/05 N.Y. Times C2
2005 WLNR 12746237
By Keith Bradsher
A Chinese Banker Is Convicted, and a Message Is Sent
HONG KONG, Aug. 12 One of China's best-known bankers was convicted of embezzlement Friday and
given a death sentence, which was suspended, state news media reported, the latest chapter in a series
of banking scandals in China.
The conviction of Liu Jinbao, the former chief executive of the Bank of China's publicly traded subsidiary
in Hong Kong and a vice chairman of the entire bank, comes at an embarrassing time for the bank. It
has been in talks to conduct an initial public offering and sell stakes to four foreign investors: the Royal
Bank of Scotland Group, Temasek Holdings of Singapore, UBS and the Asian Development Bank.
The Chinese government has used $60 billion of the nation's foreign currency reserves in the last two
years to shore up the capital bases of the Bank of China and two of its big rivals, the China Construction
Bank and the Industrial and Commercial Bank of China.
This spending has been unpopular among urban residents aware of the issue, and a series of bank
corruption cases have made the use of foreign currency reserves even more controversial.
"They're pouring the money in, but it's going out the other side," said Nicholas R. Lardy, an expert on
Chinese banking at the Institute for International Economics in Washington.
The official New China News Agency reported that Mr. Liu had been sentenced to death with a two-year
suspension, and his personal assets were confiscated. Suspended death sentences are typically
commuted to life imprisonment in China.
The severity of the sentence given to Mr. Liu, who was convicted of taking $173,000 in bribes and
embezzling $2.7 million on his own and with others, highlights the stringency of China's penal code and
the efforts of Beijing's leaders to contain corruption.
Mr. Liu was recalled to Beijing and dismissed in May 2003, after the bankruptcy of one of the biggest
borrowers from the Hong Kong subsidiary of the Bank of China. The bank forced the borrower, New
Nongkai Global Investments Ltd., into bankruptcy for nonpayment of $95 million of a $270 million loan
that had been extended less than a year earlier.
The government news agency did not mention that case Friday, or explain when the embezzlement or
bribes took place.
The Changchun Municipal Intermediate People's Court in Jilin Province in northeast China convicted Mr.
Liu along with two former vice presidents of the Bank of China's Hong Kong subsidiary and the general
manager of Mr. Liu's office. The vice presidents, Zhu Chi and Ding Yansheng, were each sentenced to
13 years in prison and a $247,000 fine, the news agency said, while the general manager, Zhang Debao,
was sentenced to eight years and a $185,000 fine.
The conviction and sentencing nearly coincide with the sentencing of top WorldCom executives involved
in that company's $11 billion accounting fraud. Bernard J. Ebbers, the founder and chief executive of
WorldCom, was sentenced last month to 25 years in prison while Scott D. Sullivan, the former chief
financial officer of WorldCom who testified against his former boss, was sentenced Thursday to five
years in prison. Mr. Ebbers is appealing his conviction.
As the top banker at the most important Chinese-owned bank in Hong Kong, Mr. Liu was the face of
Chinese banking in China's most important center of international finance and served as chairman of the
Hong Kong Association of Banks.
121
Mr. Liu had the good fortune to graduate in 1976 from the University of International Business and
Economics in Beijing, long a training ground for top civil servants. The Cultural Revolution was ending
after a decade in which many students had been unable to complete their studies, and the country was
about to embark on a quarter century of rapid economic growth in which any expertise in economics and
business was frequently a ticket to personal success.
Mr. Liu joined the Bank of China immediately upon graduation and went to London the following year to
work for the bank as a foreign exchange and gold bullion trader. He was transferred to Shanghai in 1981
and worked his way up to general manager of the Shanghai branch in 1994 before being transferred in
1997 to run the Hong Kong operation.
Dow Jones reported from Kuala Lumpur, Malaysia, that Zhang Yanling, the executive vice president of
the Bank of China, told reporters at a conference there on Friday that the bank was still on track for an
initial public offering "maybe at the end of this year or early next year."
122
http://www.latimes.com/news/nationworld/world/la-fg-divorce12mar12,1,5543259.story
By Ching-Ching Ni, Times Staff Writer
March 12, 2005
Chinese Embrace Quickie Divorce as State Butts Out of Private Lives
BEIJING — They had been married more than 20 years. If it hadn't been for a law making it difficult for
them to get a divorce, they might have called it quits long ago.
"We just don't get along," said a retired factory worker as she ducked out of a divorce registration office
in Beijing last week while her now-former husband hurried away in the winter wind. "We've thought
about it for a long time. The new rules are best. Finally we don't have to deal with the hassles."
She was referring to the previous law, which required couples to get permission from their employers
before starting or ending a marriage.
The law could be intimidating: Plans to tie the knot might be fun news to break to the boss; untying it
tended to invite uncomfortable probes into personal lives and lectures to reconsider the decision.
In doing away with that policy in the fall of 2003, the government appears to have unleashed a stampede
to freedom.
In 2004, the divorce rate soared more than 21% over the previous year, the Ministry of Civil Affairs said
last month. That represented more than 1.6 million couples breaking up, 300,000 more than in 2003.
Observers attribute most of the increase to the simplified procedure and the overall rise in personal
liberties in China.
"People's living standards have improved. They can change jobs, change home addresses. Why
shouldn't they be able to change marriage partners without unnecessary restrictions?" asked Shen
Yongfeng, a divorce lawyer based in Shanghai.
In the past, even those who obtained permission from their supervisors faced government divorce
officers whose job it was to talk them out of breaking up. There was a one-month waiting period to think
things over, and both partners had to show up for all the appointments or risk having the application
voided. Those who couldn't deal with the stress and stigma gave up.
Now couples can change their lives in 10 minutes.
If both parties agree to the split, they simply fill out an application and provide their marriage certificate,
identification and photos of themselves. They pay a processing fee of about a dollar, and suddenly they
are no longer married.
"Before, we would have to try to help them resolve their differences. Now that is considered private. The
only question we ask is: Is it voluntary? They don't have to tell us any details," Dong Hailong, 28, a
divorce officer in Beijing, said at his desk below a large, red national emblem and next to a Chinese flag.
Whereas marriage might have seemed an inescapable burden to some in the past, now there are
concerns about the newfound ease of divorce. Chinese media have reported on couples who were wed
in the morning and divorced in the afternoon and others who divorced one day and remarried the next.
Some people raise concerns that the new law might encourage infidelity, with people rushing to leave
spouses for sweethearts and simply divorcing again if regret sets in.
"I think it was [socialism theorist Friedrich] Engels who said a marriage without love is amoral," said Shen,
the divorce lawyer. "People should have the freedom to choose. I think it's a sign of progress."
123
The rush to the altar last year was less dramatic than the dash to divorce. Although the rules for
marriage also were simplified, the number of newlyweds rose only 3% over 2003, to 8.3 million.
Many young Chinese took their families to the cleaners on costs. A recent survey found that the
weddings of many newlyweds, most from a generation of single-child households, could easily cost
about $24,000 for ceremony, banquet, photo shoot and honeymoon.
The average Chinese urbanite makes a little more than $1,000 a year. Farmers make a third of that.
Some observers say the big weddings also contribute to the statistics on divorce.
"Some people want to make the wedding the most spectacular event of their lives," Shen said. "They
tend to be equally idealistic about their marriage. So it's easy to feel let down."
A more serious worry about the streamlining of the marriage rules is a reported recent rise in hereditary
diseases and birth defects. Before, all prospective newlyweds had to pass physical exams and undergo
blood tests before they could marry.
Now those steps are voluntary, and most people are skipping them.
"Simplifying the procedures was meant to give people more freedom of choice," said Lu Jiehua, a
population expert at Peking University. "We didn't realize it could also cause such a negative impact."
The issue has sparked so much concern that some delegates to the National People's Congress are
proposing to make the premarital tests a free service so more people will be motivated to get them
before marrying.
"Premarital health checks can play a very important role in ensuring healthy families and healthy babies,"
said Siri Tellier, the United Nations Population Fund's representative in Beijing. "They should make sure
it's free and voluntary and something that goes beyond genetic testing to include more comprehensive
health advice."
124
April 9, 2005, New York Times
By ERIK ECKHOLM
China Opens New Inquiry of Times Researcher Held Incommunicado
Chinese researcher for The New York Times who has been held incommunicado for seven months on
suspicion of leaking state secrets is now being investigated for financial fraud, Chinese security officials
told the man's lawyer in Beijing this week.
The officials provided no details about the fraud allegations, and it is not clear how they will affect the
imprisonment and prosecution of the researcher, Zhao Yan.
Some legal experts and diplomats said it appeared possible that the secrets charge, which is shrouded
in the wrap of national security, could be dropped for lack of evidence while a new case would be
pursued on a far less serious charge of fraud.
The new allegations could also be added to the existing charges, allowing authorities to hold Mr. Zhao
without formal indictment, and still without access to a lawyer or relatives, for many additional months.
"The system is so lacking in transparency that we can only make inferences," said Jerome Cohen, a
lawyer in New York who has advised The Times on the case. "We're hoping this will transform his case
from a state-secrets matter into an ordinary fraud case and that his lawyer will finally be able to meet
him."
Mr. Zhao's arrest, apparently for his journalistic work, has been protested by The New York Times and
by senior American officials including, most recently, Secretary of State Condoleezza Rice during her
visit to Beijing in March.
Mr. Zhao began working as a researcher for The Times's Beijing bureau in May 2004, assisting with
translation and the arranging of interviews. He previously worked as a freelance journalist and as a
reporter for China Reform magazine, working to expose official corruption and police misdeeds.
Mr. Zhao was detained on Sept. 17, 2004, and in October was formally arrested on suspicion of
revealing secrets.
Mr. Zhao's detention followed the publication of an article in The Times that accurately predicted the
resignation of Jiang Zemin, the former president and party leader, from his last remaining senior post, as
military chairman. Leadership discussions are top secret in China, and colleagues of Mr. Zhao
speculated that his arrest on the secrets charges, which could result in a long prison sentence, was in
retaliation for that article.
Senior editors of The Times have repeatedly said that Mr. Zhao never provided the paper with any state
secrets.
In some other cases, Mr. Cohen noted, security authorities who found themselves unable to justify initial
allegations against a prisoner have brought lesser charges, like fraud, in an effort apparently to save
official face.
Since detaining Mr. Zhao in September, the Ministry of State Security has not turned the case over to
prosecutors for indictment, as by law it must do this month. The new fraud allegations could provide a
legal basis for continuing to hold and investigate Mr. Zhao for many months more.
Mr. Zhao's lawyer in Beijing, Mo Shaoping, learned of the new allegation during an unsuccessful
application to meet his client. The officials have refused to say whether the secrets charge is still pending
or whether Mr. Zhao will be transferred to custody of the public security bureau, which handles ordinary
criminal cases.
125
International Herald Tribune
Wednesday, July 6, 2005
By Jonathan Mirsky
Maintaining the Mao myth
LONDON Not long ago I wrote an enthusiastic review of "Mao: The Untold Story," the new biography by
Jung Chang and Jon Halliday. The June issue of the Far Eastern Economic Review, in which my review
appeared, was promptly barred from China.
The same fate has befallen other publications containing similar reviews, and a BBC interview with Jung
Chang herself (she is the author of the global best seller "Wild Swans") was blocked.
Mao Zedong died in 1976. Why is it that almost 30 years later, in a China where freedom of speech is
said to be on the rise, attacking the Chairman remains taboo?
Chang's and Halliday's biography is a nothing-is-sacred act of demolition. Chang says of Mao, "He was
as evil as Hitler or Stalin, and did as much damage to mankind as they did." The authors assert that Mao
was responsible for upwards of 70 million peacetime deaths, including at least 37 million in the 19591961 famine that arose from Mao's harebrained economic policies.
These are scarcely new facts within China. If 70 million people died before their time and many more
millions suffered during the Cultural Revolution, there must be hundreds of millions of Chinese who know
about Mao's depredations.
Indeed, in 1981 the Party published an official judgment in which it said the Chairman bore the main
responsibility for the epochal tragedy of the Cultural Revolution, and admitted, too, that from the late
1950s the Chairman had made mistakes and misjudgements.
But the Party concluded that Mao remained a great Marxist revolutionary. The Cultural Revolution,
therefore, remains out-of-bounds for serious research in China.
And here we discover the ultimate inviolability of Mao, whose enormous portrait still gazes down onto the
sacred center of China, Tiananmen Square.
Proper research within China would reveal what is already well known to China specialists in the West,
and is highlighted in Chang's and Halliday's biography: Mao did not merely throw the switch to start the
Cultural Revolution, he micro-managed some of its worst acts. And, like Stalin, Mao needed always to
know the grisliest details of persecution, whether of his old colleagues or mere officials and scholars.
Then there is the myth of Mao before 1949 - the hero of the Long March who in 1934-35 led the ragtag
Red Army to safety at Yanan, the guerrilla headquarters from which Mao fought Chiang Kai-shek and
organized the eventual Communist victory in 1949.
As has been shown by Chang and Halliday and earlier scholars, the myth was fed by Mao to the heroworshipping American journalist Edgar Snow in 1936 and is largely a lie.
On the Long March itself - and this is a Chang-Halliday scoop - the most heroic moment, the crossing by
daredevil Red soldiers of a blazing bridge over a gorge, with Chiang Kai-shek's forces at the other end,
never happened.
Indeed, it appears that Chiang Kai-shek allowed the Reds to escape.
All that was long ago. Why, then, protect the Chairman now? Because without Mao a black hole would
gape beneath the feet of the Communist Party. After all, in 1956, after Nikita Khrushchev's denunciation
of Stalin, Lenin remained. Without Mao, his heirs - for that is what they are - would be left dangling in an
ideological void.
126
There must, therefore, be no void. Every Chinese student from primary school on receives regular
lessons in what is called "political education." In this curriculum the history of the Communist Party - its
triumphs over imperialism, exploitive capitalism, landlordism, and Chiang Kai-shek - are celebrated, as
are the Party's eradication of starvation, prostitution, venereal disease and opium.
Who was the begetter of all this? Mao Zedong, the Great Helmsman, Teacher, and Reddest Red Sun in
our Hearts; the near-god who on Sept. 21, 1949, proclaimed that the "Chinese people have stood up."
So to demolish the Chairman would be catastrophic for the present leadership. These leaders, after all,
continue to emphasize that "the Communist Party makes mistakes but only the Communist Party can
correct them."
But what if the Party itself is a mistake and Mao a yet greater one? China's leaders are determined to
prevent that thought from getting loose in the minds of hundreds of millions of Chinese.
(Jonathan Mirsky was formerly the East Asia editor of The Times of London. )
127
12/18/04 Economist 5
2004 WLNR 14458884
China: A brother for her
Could China's most notorious social policy soon be scrapped?
A QUARTER of a century after China began urging its citizens to have only one child--and severely
punishing the over-progenitive--calls are growing for a change of policy. Some Chinese scholars now
say the costs of coping with a rapidly ageing population will outweigh the benefits of maintaining
draconian population controls. Even the official media are beginning to publish suggestions that a twochild policy would be preferable.
Various exceptions to the one-child-per-couple rule have long been permitted. In the countryside,
couples are allowed to have a second child if the first is a girl. Ethnic minorities are allowed two or more
children. And in urban areas since 2001, if both husband and wife are themselves only children they
may have two. Despite the loopholes, the policy has undoubtedly helped to reduce the fertility rate,
which fell from 2.29 children per woman in 1980 to 1.69 this year, according to estimates by America's
Census Bureau. A fertility rate of around 2.1 is considered the level at which a population can replace
itself. China's population, currently the world's biggest at 1.3 billion, should begin to shrink by mid-century.
The impact of the policy is particularly evident in urban areas, where the government has found it far
easier to enforce the rules. Fines can range from between three and ten times the average annual urban
income. Officials and employees of state-owned enterprises can be demoted or dismissed and the
second child can find it difficult to get a place in school. So rare is it now for a city couple to have more
than one child that the appearance of your correspondent's small offspring in public arouses frequent
exclamations of "three!"
The extent of compliance in the countryside is more difficult to gauge. Although rural violators are
sometimes treated brutally--forced abortions and destruction of property are not uncommon--village
officials often turn a blind eye in order to avoid confrontation with peasants desperate to ensure support
in their old age. Rural fertility rates are believed to be higher than China's statistics show, since many
children are concealed from census takers.
China says that its population control measures have resulted in some 300m fewer births in the last 30
years. But while such measures may have helped to ease pressure on scarce resources and reduce
once widespread poverty, they are also aggravating demographic imbalances that could undermine
these gains.
In the next decade, the proportion of China's population aged 65 and over will begin swelling rapidly
while the growth of the working age population will shrink (see chart). China's rate of ageing will be faster
than that of any other country in history. If current trends continue, the ratio of working age people to
retirees will fall from six today to two in 2040. That will impose colossal financial burdens in a country
already struggling to meet its pension commitments to the elderly. In urban China, what is referred to as
the "4-2-1 phenomenon" looms on the horizon: four grandparents and two only-child parents being
supported by one only child.
The sex ratio is also becoming increasingly skewed. Cultural bias in favour of males has produced an
officially recorded ratio at birth of 118 boys to 100 girls, according to China's national census in 2000.
The normal ratio is about 105 to 100. Some female births (as well as some male births, though fewer)
are not recorded, in order to avoid reprisals by zealous family-planning officials. But a large part of the
distortion is caused by selective abortions. A pilot programme to tackle this by restricting late abortions
(those after 14 weeks, by which time the sex can be determined) will start next year. Infanticide is far
rarer, but neglect or maltreatment of female babies results in a considerably higher mortality rate than
among boys.
128
The one-child policy is by no means entirely to blame. Mu Guangzong of Renmin University of China in
Beijing says that even without it the fertility rate in big cities would only be around 1.5, well below the
replacement threshold (but higher than 1.0 as it now is in Beijing and Shanghai). The desire for larger
families has been considerably blunted by China's transition in recent years to a market economy.
Health care, education and housing, once provided virtually free to most city dwellers, are now costly. Mr
Mu says that even in the handful of rural counties where the authorities have experimented with allowing
farmers to have two children unconditionally, parents have shown little inclination to exceed that number.
Mr Mu argues that a two-child policy is long overdue. In his view, the current policy is making families
feel increasingly insecure. Mothers who had a single child in the early days of the policy are now
becoming too old to have any more children, making them particularly fretful about the possibility of their
only child dying or becoming incapacitated. In June a book by a journalist about the hundreds of
thousands of families who have experienced such ordeals became a bestseller. The government later
banned it.
But the government's sensitivities have not prevented the publication of several articles in the official
media in recent months quoting the views of other one-child policy critics, including Mr Mu. In October, a
senior family-planning official was quoted in one newspaper as saying a two-child policy would be more
suitable. This prompted a spate of denials by other officials that any change was imminent. But officials
have hinted in the past that the policy could be eased after 2010, and studies of its impact are said to be
under way.
Already some places are making it easier to have two children. In 2002, Jilin province removed
stipulations that those qualified to have two children must wait four years before having the second.
Hainan province and Shanghai have followed suit.
Economic change is already undermining the government's efforts to enforce the policy. Rich urbanites
are increasingly willing to pay the fines, or sometimes even buy expensive in vitro fertilisation treatment
that might increase their chances of having multiple births. Some try to have a second child abroad, so
that the child can get a foreign passport and not be counted by Chinese family-planning officials.
A two-child policy would certainly boost fertility rates and could cause China to exceed its desired
maximum population of 1.6 billion in 2050. But it could also slow down the ageing of the population and,
by changing the ratio of young workers to old people, give time for the creation of a decent socialsecurity system. Not least, it would come as a relief to citizens for whom the one-child policy is now one
of the few relics of the Communist Party's once all-pervasive control of their private lives.
129
http://www.latimes.com/news/nationworld/world/la-fg-china2jun02,1,2069912.story
THE WORLD
By Mark Magnier, Times Staff Writer
The Two Faces of China's Leadership
President Hu and Premier Wen are reaching out to the common man -- and coming down hard on
dissidents and reporters.
June 2, 2005
BEIJING — Two years after coming to power, Chinese President Hu Jintao and Premier Wen Jiabao
have staked out a two-pronged strategy for political control: projecting a kinder, gentler image while
cracking down on those disseminating unauthorized information.
The news this week that a prominent Hong Kong journalist had been detained on spying charges, the
third such case in nine months, is the latest entry on the hard side of the ledger, analysts say. Recent
months have seen a series of actions against the media, scholars, Internet users and dissidents.
This contrasts with efforts by the Hu administration to burnish a down-to-earth image on other fronts, in
part through such policies as cutting taxes for farmers and increasing local subsidies in hope of reducing
the yawning gap between rich and poor.
Hu and Wen have also made symbolic gestures, such as Chinese New Year trips to eat dumplings with
coal miners, shaking hands with an AIDS patient and ensuring that a migrant worker got paid.
"The Chinese expression is 'The soft get softer, the hard get harder,' " said Xiao Qiang, director of the
China Internet Project at UC Berkeley. "They're trying to get closer to the grass roots in terms of people
marginalized, to balance a bit the increasing wealth gap.
"But they're becoming even tighter on centralized, top-down controls," Xiao said. "Their media oversight,
state security agency and propaganda machine are only getting stronger. It doesn't speak much for
political reform."
The news that journalist Ching Cheong, working for the Straits Times of Singapore, had been detained
surfaced this week, a month after he was jailed and days before Saturday's 16th anniversary of the
Tiananmen Square crackdown on pro-democracy demonstrators. Ching, 55, entered China in April,
reportedly to obtain a draft manuscript of interviews with the late Zhao Ziyang, a mainland leader who
was ousted in 1989 for opposing the Tiananmen action.
hing was detained by mainland authorities April 22 in his hotel in Guangzhou. He has not been formally
charged nor has he had access to a lawyer or been allowed to see his family.
This week, Ching's wife went public about his detention after keeping silent for several weeks in the
hope it would help win his release. She said the detention was a setup sparked by Beijing's extreme
sensitivity over anything related to Zhao.
China's Foreign Ministry acknowledged the detention Tuesday and said Ching had confessed to
engaging in espionage for "overseas intelligence organizations" and had "collected a large amount of
spy fees."
"The case has absolutely nothing to do with Zhao Ziyang," Foreign Ministry spokesman Kong Quan said.
"We are a country with rule of law. We only act on evidence. He has confessed to it."
Colleagues and family members see it differently.
130
"Those who know Ching Cheong know he's not the sort to sell himself for money," said Tsoi Wing-mui,
executive editor of Hong Kong's Open magazine and a colleague in the territory's small media circle. "He
has great idealism and professionalism."
Several analysts said that charging journalists under potentially draconian state-secrets provisions is
meant to send a strong signal that passing on insider information on leadership issues is off-limits. Some
violations carry the death penalty.
In September, New York Times researcher Zhao Yan, a Chinese national, was detained on suspicion of
revealing unspecified state secrets and has not been seen publicly since. The arrest followed a report,
which proved correct, by the newspaper that former Chinese President Jiang Zemin was retiring from
politics.
Zhao Yan's lawyer told Reuters on Wednesday that Beijing planned to investigate him for fraud as well,
which lets authorities start the clock ticking again for seven more months before charges must be filed.
In April, Chinese journalist Shi Tao was sentenced to 10 years in prison after a court ruled he was guilty
of illegally providing state secrets to overseas organizations. The court did not provide specifics, but
watchdog groups say the "secrets," posted on a website, were the propaganda ministry's guidelines for
dealing with the media.
The New York-based Committee to Protect Journalists reports that at the end of 2004, China had 42
journalists in prison, more than any other country for the sixth year running. Human rights groups and
legal experts say China's state-secrets laws are vaguely worded, allowing authorities to apply them with
broad discretion.
"These sorts of charges can signal harsh sentences," said Abi Wright, Asia coordinator for the
Committee to Protect Journalists. "So whenever we see them, and we are seeing them more and more
these days, we are concerned."
Lawyer Guo Guoting, who represented Shi, questioned the state's use of the laws in March. Soon after,
his offices were raided and he was barred from practicing law for a year.
Analysts say China has a positive story to tell these days with its booming economy, growing diplomatic
clout and improved living standards. And Hu and Wen, they say, have done a much better job than
previous leaders in appealing to the Chinese people, all of which would seem likely to give the
leadership more confidence and a greater willingness to tolerate criticism.
"Many people think Hu and Wen should be confident. But they only see the superficial things," Tsoi said.
"China has a big and growing social crisis, masses of exploited workers and lots of social conflict.
Chinese society is under great strain, and the leadership is not confident."
Beijing remains highly sensitive about Zhao Ziyang, analysts said, even though he died several months
ago. After spending 15 years under house arrest, Zhao's legacy remains.
Circumstantially, the case suggests a split in the upper reaches of the Communist Party, between those
who favor more reform, such as an increased use of checks and balances as outlined by Zhao, and
those who favor the conservative hard line as advocated by Jiang, Hu and Wen.
"The material about Zhao Ziyang is pretty innocuous by international standards, including the calls for
economic, political and legal reforms," said Nicholas Becquelin, Hong Kong-based research director with
Human Rights in China. "But inside China, it's still political dynamite that really strikes at the heart of their
legitimacy."
Cadres in the top ranks of the party are not above using strategic leaks, and mainland-friendly reporters
in Hong Kong are often a conduit for such leaks.
131
But as the Ching case suggests, something that would cause a minor stir in other countries can be a
dangerous situation in China when public security bureaus get involved.
China's 150,000 domestic journalists are also under growing pressure. Several reporters and editors
have been jailed in recent months, and tougher media guidelines have been issued.
Leaked memos from the propaganda ministry detail orders not to report on Tiananmen, mining
accidents, the banned Falun Gong spiritual group, the chaotic Cultural Revolution period, or even a 2003
incident in which the wife of a wealthy businessman reportedly drove her BMW into a crowd intentionally
after someone scratched it, killing a farmer and injuring 12 people.
China's Internet controls, already among the most sophisticated in the world, have also been tightened.
In March, several popular commercial and university online bulletin boards were shut down or sharply
restricted.
Chinese cybercops have gone undercover as ordinary Internet users to subtly steer discussion groups
and otherwise "accentuate the positive and avoid the negative," the newspaper Southern Weekend,
based in Guangdong, recently reported.
Some human rights activists acknowledge that Beijing's tough tactics have been relatively effective.
"They're much more efficient than anyone predicted, especially involving control of the Internet,"
Becquelin said.
But he added that such efforts were a losing battle and ultimately detracted from the leadership's ability
to get the information it needed to anticipate problems and remain in touch with the people — part of its
soft-side strategy.
"They're resisting, but this is the Information Age," Becquelin said. "The demand for information in China
is greater day by day."
132
Taipei Times, July 25, 2005 Page 8
http://www.taipeitimes.com/News/editorials/archives/2005/07/25/2003265006
By Liu Kuan-teh
Beijing's expanding military a global issue
The US Department of Defense's annual report to Congress on "The Military Power of the People's
Republic of China" highlighted growing concern, not only among US officials but also regional nations,
over the impact of the rapid modernization of China's military forces on regional security, and its
belligerence toward Taiwan as the cross-strait military balance has continued to tilt toward China.
The report related that the People's Liberation Army now has 650 CSS-6 and 730 CSS-7 short-range
missiles targeted at Taiwan, as well as over 700 aircraft, including a rising share of advanced Su-27
fighters, two-thirds of its naval forces and 375,000 ground troops stationed across from Taiwan.
New findings also remind the world that China is improving its strategic missiles, capable of targeting
India, Russia, virtually all of the US, as well as the Asia-Pacific theater as far south as Australia and New
Zealand. Beijing's recent engagement in conflicts with its neighbors over territory and resource rights,
also illustrate political uncertainties.
While the report attributed the rationale for Beijing's continued military build-up as a move to both prevent
Taiwan's independence and to counter any third-party -- potentially the US -- intervention in cross-strait
affairs, the modernization of the People's Liberation Army (PLA) and its explicit ambition to threaten
countries in the region, is cause for more global concern.
President Chen Shui-bian has repeatedly pledged that he will not pursue Taiwan's de jure independence
during the remainder of his second term. The political situation, with the pan-green camp holding less
than half of the seats in the legislature, also inhibits the administration's actions.
Moreover, the third-party argument plays an illegitimate role -- unless a cross-strait conflict were to be
initiated solely by the People's Republic of China. Washington will help defend Taiwan and provide
Taipei with defensive-oriented weapons in accordance with its own domestic law, the Taiwan Relations
Act.
The irony is, China unilaterally enacted the so-called "Anti-Secession" Law this March despite
international concerns. The law provides a legal basis for the PLA to employ "non-peaceful means" to
resolve cross-strait disputes. To put it simply, Beijing will have the absolutely right to define the
conditions for using force against Taiwan.
Under such circumstances, one cannot help but ask the following essential questions: Does Taiwan's
independence and US interference in cross-strait affairs constitute an apparent and direct threat against
China's national security? If not, why would the Chinese government increasingly and continuously
expand its military power and develop long-range missile systems in the absence of a clear and present
danger from the outside?
The Pentagon report is a wake-up call to the international community that Taiwan is not the only
potential victim of Beijing's missile development and military aggrandizement. China's emerging military
threat has extended beyond the Asia-Pacific region to Russia, Central and Southern Asia, and Australia.
Even though the Chinese authorities have introduced the concept of "peaceful rise," a new term to
describe China's emergence, the notion of the "China threat" is by no means limited to the Taiwan Strait.
In pursuing engagement with China, the international community, including the US, must state clearly
that safeguarding a strong and democratic Taiwan is in the interest of US efforts to create peace and
prosperity in the Asia-Pacific region. Only by offering Taiwan support for continued democratic
consolidation and defense can the impact of the "China threat" be jointly managed.
Liu Kuan-teh is a Taipei-based political commentator.
133
3/8/2004 New York Times
By JIM YARDLEY
Chinese Appeal to Beijing to Resolve Local Complaints
BEIJING, March 7 - Dong Da says he has been beaten, arrested and harangued since he began
complaining seven years ago that officials had stolen from him and other farmers. He has eluded the
local authorities and taken his complaints to higher officials in Beijing, though each trip brings more risks
at home.
Only last month, Mr. Dong said he and other farmers arrived at a Beijing train station, where he planned
to meet a lawyer but instead found the police from his home province, Hebei, in northern China, waiting
to detain them. Even though police officers now watch his home, Mr. Dong said by telephone last week,
he is still trying to return to Beijing.
Yet if he again manages to slip away, he does not expect much in Beijing. "I've been protesting and
appealing all these years, but nothing has come of this," Mr. Dong, 43, said in an interview last month.
"The departments in Beijing simply kick the cases back and forth. Nobody takes responsibility."
Mr. Dong's plight is shared every year by thousands of Chinese, many of them peasants, for whom
winning an audience in Beijing is a last hope, if usually a false one. Even so, the number of petitioners
writing or coming to Beijing jumped sharply last year, as more ordinary citizens are demanding good
government.
In a marked shift, high government officials, including President Hu Jintao and Prime Minister Wen
Jiabao, are acknowledging that many complaints have merit. In January, Zhou Zhanshun, director of the
agency that monitors complaints, said 80 percent of them were reasonable and should be resolved at
the local level. He said the number of petitioners in Beijing had jumped by a third in the first 11 months of
2003.
But acknowledging problems is not the same as fixing them. This is the high season for petitioners, who
are eager to reach Beijing during the annual National People's Congress meeting. In his opening
remarks on Friday, Mr. Wen offered encouragement to the poorest citizens, promising a crackdown on
corruption and illegal land seizures.
Yet human rights advocates say the Beijing authorities, fearing embarrassing protests, have been
blocking protesters from reaching the delegates. Some say they are under virtual house arrest.
The petitioners who make it to Beijing bring the full range of complaints percolating in China's cities and
countryside: allegations of corruption and police abuse, claims of illegally seized land or wrongful
evictions from city apartments and claims of unpaid wages. They also bring, in theory, the weight of
Chinese law, which provides that petitioning in Beijing is a basic right.
Yet the system, which involves filing formal complaints with certain agencies, is largely considered a
futile exercise. One longtime petitioner, Liu Jie, has taken the vain but symbolic step of suing the
government over the process itself.
"I hope the case will set an example for other people as well," Ms. Liu said in an interview.
An article in a recent edition of Law and News magazine called for reform and said corrupt officials
"resort to any means" to hinder petitioners. "In their eyes, `petitioning' is tantamount to `troublemaking,'
and the petitioners are seen as `unstable elements,' " it said.
134
Lu Yuegang, a journalist who has written about the plight of petitioners, said the rise of complaints in
Beijing was "because so many problems aren't being solved at the local level." Common people are now
more aware of their rights, he said, but few find satisfaction in Beijing.
"In the end, the complaints are sent back to the people whom the complaints were made against in the
first place," Mr. Lu said.
The discontent is partly fueled by China's growing divide between rich and poor, which is fostering
growing resentments and becoming a major concern for top leaders. A recent survey found that the
income gap between rural and urban residents had grown in the past five years, with urban workers
earning 3.1 times as much as farmers in 2002.
Since taking power last year, Mr. Hu and Mr. Wen have spoken repeatedly about the need to lift living
standards for the poorest people. Their populist stances have emboldened many petitioners. Earlier this
year, Zhang Shufeng and her husband, Zhang Deli, appealed for the president's attention at the
entrance of the main leadership compound, Zhongnanhai.
Their complaints varied from local corruption to allegations that a teacher had abused their daughter. For
the first few days, Ms. Zhang said, the police escorted them away. Finally, she said, officers pushed her
husband into a van and beat him.
Mr. Dong, the petitioner from Hebei, said he began petitioning after he and other farmers were relocated
so a dam could be built on their land. Mr. Dong was moved in 1996, and he said local officials never paid
farmers the full promised compensation. He said he was owed almost $3,000, about seven years
income.
He said he was encouraged by the tone set by Mr. Hu and Mr. Wen but hesitated to expect much help.
A decade ago, he said, other farmers from his region protested at Zhongnanhai and were sent to labor
camps.
"I see how on the TV news they seem to be caring more about little people's problems," Mr. Dong said.
"But for big problems like ours, we've been through three prime ministers already, and our problems
haven't been solved."
A fundamental question, of course, is why people invest so much hope in a process that seems
hopeless. Mr. Lu, the journalist, says nearly 20 petitioners a day contact him about their cases. Many
frustrated petitioners are now turning to lawyers, even though few win in court.
Mr. Dong is part of a petition drive to oust his hometown mayor. He says organizers have surreptitiously
collected 8,000 signatures. If he can slip away in the coming days, he hopes to present the petition to
delegates at the National People's Congress.
He said he had to borrow nearly $4,000 to build a new house after his land was seized. His family has
seven people living under the same roof on less than $400 a year. Why does he keep protesting? He
says he has no choice. "We're owed too much money," he said.
135
136