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Rule of Law: The Key to Peace and Prosperity

Popularity 4Viewed 1428 times 2013-2-28 19:22 |Personal category:speech|System category:News


by Gary F. Locke
United States Ambassador to China
Renmin - Moot Court
February 25, 2013

AMBASSADOR LOCKE:  Thank you very much, Administrator Zhu,  Ambassador Schaeffer, Ambassador Saint-Jaques, Minister Counselor Lentz, Chairman Cheng and Dean Han and all of our distinguished jurists who are participating in the Moot Court petition as well as all of our law students. 

I also want to thank Chairman Cheng and Dean Han for hosting all of us at this prestigious university and for all the great work that you do to educate these great young students.

I share your passion and commitment to the rule of law as well as your support for this prestigious competition that brings law students from all across China to face some of the most challenging and exciting legal issues facing our world today.

I applaud the students that are gathered here from all across China who are sharpening their skills for service to their nation.  I’m also grateful that so many experienced attorneys and jurists from around the world are helping train these talented law students.

I’ve often been asked, what has made America such a successful, innovative, dynamic and stable society that has attracted and continues to attract people from all around the world. In fact the answer was first given to me by Chinese scholars and business people and they answered, the defining characteristic of the United States of America is the strong rule of law. 

So this morning I’d like to expand on how critical the rule of law is to a progressive and stable society.

First of all I want you to know that like many of you I got my start as a lawyer working for four years as a criminal prosecutor in my home town of Seattle, Washington, and I prosecuted people charged with burglary, robbery, drug trafficking, and murder.

In arguing complicated legal cases before the judge, even if I lost the ruling, even if the judge ruled against me or the position of the government I often left the courtroom believing that justice was being served because the judge had read the legal papers submitted by all sides.  The judge had studied the case law and carefully considered the legal issues.  Finally, the judge gave a decision that was reasonable and based on the law. 

My own passion for the law continued throughout my career.  I briefly served as a part-time judge and in two terms as governor of the State of Washington my work often involved matters of the law.

One of my proudest achievements as governor was reforming our juvenile justice system by focusing on sending young first-time or minor offenders to community service and other rehabilitation programs as an alternative to prison time.  I’ve watched with great interest as China pursues similar changes to its own juvenile justice system.

As governor, I had the opportunity and the privilege to appoint more than 50 judges.  In fact most of the judges I appointed are still hearing cases today.  Almost 25 percent of the judges I appointed were ethnic minorities, and almost 50 percent were women.

Because it’s my belief that if all segments of our society are to respect the judicial system and to accept the rulings of the courts, then our judges must reflect the demographic profile of the society appearing before them.

As governor, I also had the grave responsibility to carry out the death penalty imposed by the courts.  Some of my most difficult and lonely moments as governor were deciding whether to grant a stay of execution, to halt an execution, or to allow the execution to proceed.

In America’s criminal justice system, whether a minor break-in or a life and death prosecution, everyone is presumed innocent until proven guilty by the government.  And moreover, everyone -- big guys and little guys, rich or poor, famous or unknown -- has a fair shot and is treated equally.  This is a bedrock principle of not just our legal system, but indeed our political system as a whole -- that everyone has a fair and equal chance.

Today some of the most famous legal cases bear the names of the little guys who took on the government, took on powerful people and big companies.

Take Miranda v. Arizona which was decided in 1966.  Ernesto Miranda was a laborer, who was accused of rape, and he confessed but he was never informed of his right to avoid self-incrimination and his right to an attorney.  As a result, the U.S. Supreme Court ruled that his right to due process had been violated; that his confession was unreliable; and therefore, overturned his conviction.

The case established the so-called Miranda Rights.  That I think anyone who has watched a police drama knows very very well.  But These Miranda Rights require the police to inform suspects in custody of their rights to remain silent, that anything they say can be used against them in a court of law, that they have a right to an attorney, and if they cannot afford an attorney, an attorney will be appointed for them.

There’s also the very famous case of Brown v. Board of Education which was decided in 1954 that ended segregation in American schools.  The case bears the name of a third grader, a child named Linda Brown who had to walk through a dangerous railroad yard to get to her all African American school located very far away, instead of attending a school much closer to her home because that closer school was reserved only for white students.

The United States Supreme Court ruling reversed previous court rulings that had allowed separate facilities that provided equal services.  Those separate but equal laws had allowed states to establish different schools for black students and different schools for white students.  The United States Supreme Court finally ruled that separate schools were in fact inherently unequal.

And the case that you’re going to be arguing during this competition, the Republic of Alfurna is another example of one of those little guys seeking redress through the court system.

Through the generations, our courts in America have established that no one is above the law, not even the President of the United States.  In 1974 in United States v. Nixon, the Supreme Court ordered the White House to release audiotapes of recorded conversations taken inside the President’s Oval Office.  All this over President Nixon’s firm, strenuous objections.  Later, two little-known journalists at the Washington Post discovered a cover-up of illegal activities in the White House and these stories eventually led to the resignation of President Nixon.

Once more, our legal and political system proved that no one, not even the most powerful person in America, is above the law.

Legal cases oftentimes inspire Hollywood movies such as “Erin Brokovich” starring Julia Roberts.  Brokovich was a former beauty pageant winner who had helped uncover chemical pollution in a tiny American town in California in the early 1990s and despite no formal legal training she took on the powerful state power company and its army of lawyers, and she helped win the town’s residents millions of dollars in compensation for the severe health effects caused by the pollution.

The rights of the little guy are the very foundation of the American system.  Back in the 1700s, few people would have predicted that a rag-tag coalition of 13 colonies on the other side of the Atlantic Ocean could somehow gain their independence from Great Britain.  But those colonies prevailed, and as a young America went on about the hard work of forming a new nation, our founding fathers insured that our constitution protected the rights of the little guy.

In that famous document, they enshrined the doctrine of separation of powers, creating three equal branches of government -- the legislative, judicial and executive branches.  By doing so, they instituted a system of checks and balances as a safeguard against any one of the three branches from abusing its authority.

Of course China’s own legal tradition and history go much farther than ours and differ in many ways from America’s. But as far back as the 4thCentury BC in the state of Qin, a famous Chinese statesman and reformer named Shang Yang elaborated on his legal philosophy in the Book of Lord Shang.  One of the most important doctrines he established was reflected in his well-known saying, “When the prince violates the law, the crime he commits is the same as that of the common people.”  More than 2,300 years ago in China, the principle that everyone is equal in the eyes of the law was already put forth and well recognized.

Also in the Analects, Confucius spoke about the responsibility of the ruler and the importance of his personal conduct.  He said, “When a prince’s personal conduct is correct, his government is effective without issuing any orders.  If his personal conduct is not correct he may issue orders but they will not be followed.”

Today in our modern society, what Confucius is essentially saying is that an effective government is one where its officials abide by the laws of that society which in essence is the rule of law.

In this regard, I’m happy to note that the study and practice of law has seen remarkable growth here in China.  Thirty years ago there were only about six law schools an estimated 2,000 lawyers throughout all of China.  Today there are 600 law schools and more than 230,000 lawyers nationwide.  China has a need for smart lawyers.  We in America perhaps have too many.  [Laughter].

For my own country, the United States Constitution is a bedrock of law and it has proven so invaluable in part because it is adaptable to the social changes that history has brought.  In that sense, it is self-correcting. 

For example, from time to time we have amended our Constitution to more accurately reflect our country’s values and to bring more people under its protection - people who have been previously excluded.  African-Americans were not considered full and free citizens of the United States until the passage of three constitutional amendments almost 100 years after the founding of our nation.  Similarly, women were not allowed to vote until the approval of the 19th Amedment in 1920.  And as further evidence of how far we have come, in 2008 Barack Obama was elected as the first African-American president of the United States.  The year before, Nancy Pelosi became the first female Speaker of the United States House of Representatives, the most senior member of the legislative branch of our government.

Last month when President Obama was sworn in for his second term as president, he was sworn in on Martin Luther King Day.  Martin Luther King was a tireless advocate for equal rights under the rule of law, especially ending discrimination against African-Americans.

America knows that our society is not perfect.  Problems remain, but progress is constantly being made.  Given our legal system’s self-correcting nature, I’m confident that we will continue to see improvements in fairness and justice.

Having a fair and transparent legal infrastructure is a key part of building a rules-based society.  But it’s not sufficient.  Even more critical is how the government responds when those laws are tested, when those laws are being challenged.  People need to know that the rules will be applied equally to all citizens, regardless of who you are or how much power you have.  The rule of law does not necessarily ensure a favorable outcome for any particular individual, but the rule of law must guarantee equal treatment under the law and the opportunity to seek legal relief.

Following the conclusion of our American Civil War, many southern states drafted laws limiting the rights of African-Americans in direct defiance of our Constitution.  These states used such provisions to impose racial segregation and restrict the civil rights of black people, African-Americans.  And it took more than a half a century before brave civil rights lawyers began to vigorously pursue lawsuits at considerable danger to themselves to have those rights restored.

One of those lawsuits resulted in the case of Brown v. Board of Education that ended legal segregation in our schools that I talked about earlier.  But even after Brown v. Board of Education, when the United States Supreme Court said that segregated schools were impermissible, many states still had not ended segregation as ordered by the United States Supreme Court.

For instance the governor of Arkansas, one of our states, continued to defy the Court and even sent the Arkansas National Guard, essentially the state police, to block nine black students from enrolling in a high school in a town of that state.

President Eisenhower countered by sending the United States Army to escort those nine African-American children into the school, making it clear that the national law as announced by the United States Supreme Court must be followed.

In my own country’s experience the rule of law gives the government greater legitimacy because people have confidence that there are fair and transparent ways to redress their concerns.  But the decisions are not arbitrary, and everyone, even the little guys, enjoys legal protection.

Opponents might not always agree with the outcome of the legal case, but they have confidence in the basic integrity of the legal process.  Just as in a sporting event, you might not always agree with the decision of the referee, but players and fans can accept the outcome of the game even if their side loses if everyone plays by the rules and everyone believes that the referees have been fair.  What isn’t accepted, however, is when referees ignore the rules or bend them in favor of one side or one player.

A recent example of this confidence and faith in our legal system took place during the 2000 U.S. presidential elections. For the first time in American history the outcome of a presidential election came down to just nine votes -- the votes of the nine U.S. Supreme Court Justices.  They had to decide who had won the most votes in the State of Florida.  They had to decide how to count some very confusing ballots.  So in the case of Bush v. Gore, the United States Supreme Court justices made a decision on the basis of their interpretation of our U.S. Constitution.  Their decision favored George W. Bush, even though it was later determined by the press and other groups that Vice President Gore had actually received more votes in Florida.  But while the Court’s decision was extremely controversial, Bush’s opponent, then Vice President Gore, accepted the Court’s ruling.  And Vice President Gore’s supporters also accepted the Court’s decision because they believed in the integrity of our legal institutions and our legal process.

In many other countries, such a close and hotly contested presidential election would have resulted in angry mobs in the street, revolution, or even the military seizing power in a coup.  The American people’s acceptance of the Court’s decision in deciding who was the next president of the United States of America is a clear testament to the value and stabilizing power of a strong rule of law.

A strong rules-based society is not only good for social stability, but also for economic development.  Any business or investment carries risk.  Business people accept that they’re subject to the laws of the city, province or nation in which they do business.  What business people and investors are not willing to tolerate is the arbitrary application of the law which imperils their ability to seek a profit or to seek redress.

For domestic entrepreneurs, if a company’s innovators believe that their ideas and hard work won’t be protected, that country risks losing the talent and business potential of their entrepreneurs.  Foreign businesses and investors will vote with their feet and take their resources to other markets which they feel are more secure, more predictable, and more fair.

This rings especially true in the area of intellectual property rights protections, because IP theft is a crime that erodes the incentive to create, to innovate.  Put simply, if there are no strong protections for intellectual property, companies -- Chinese and foreign -- will think twice before developing new businesses, technologies and innovations.

In conclusion, we need to ask the question how does a society build confidence in the integrity of its legal system?  The answer is simple.  Steadily.  It takes years, patience and a lot of trial and error.  And frankly, we’re still working on it in the United States.  There is no one size fits all system or solution.  China has a long and rich legal history that can provide some lessons for its future.

There are, however, some common principles including an independent and respected judiciary as well as equal protection under the law that transcend cultural differences.

Progress down the road to a rules-based society requires dedication and long-term effort.  But one of the many things that makes me proud to be an American is how all through the generations of our history Americans have worked to bring the United States closer to the ideal of forming as the preamble to our Constitution says, “a more perfect union.”  The rule of law is key to this ideal and it helps build a people who are united, patriotic, confident in their rights, and committed to their own country’s future.

As future lawyers you have a special role and responsibility in advancing and elevating the rule of law in China.  China has a great future ahead of it, but it depends on an active, neutral, respected judiciary, rule of law, and lawyers.  The people of China are counting on you.

Good luck.  Thank you very much.

(Opinions of the writer in this blog don't represent those of China Daily.)


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Reply Report voice_cd 2013-3-1 09:25
http://blog.chinadaily.com.cn/blog-1025602-8098.html here is conincidently a response to the speech.
Reply Report LawReader 2013-3-5 16:18
I've read this manuscript. It's quite good.

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XuFangqing

A journalist with China Newsweek http://weibo.com/xufangqing

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