Dialogue instead of Dogma Germany's Muted Critique of China

For almost a decade, Germany has been engaged in an official dialogue with China about human rights and constitutional law. Little, though, has been accomplished -- except for giving German leaders an excuse not to be more openly critical.

Two by two, scores of students in black uniforms march into the lecture hall. At the front, behind a long table, sit a number of men and women from Germany. They have come to the Chinese People's Public Security University in Beijing to talk to 250 police cadets about "justice and harmonious society."

The German experts talk about "citizens in uniform;" about respect for human rights; about constitutions and dignity. No prisoner should be tortured no matter what the circumstances, says Hansjörg Geiger, who has led both Germany's foreign intelligence service as well as its domestic counterpart. Once the three-hour event is over, though, a couple of questions remain. What have the Chinese students taken away from the lecture? And will they later be allowed to actually put it into practice?

This German-Chinese dialogue, referred to in full as the "constitutional state and human rights dialogue" has been under way for nearly 10 years. It has almost always happened discreetly, hidden away from public view.

When China's Prime Minister Wen Jiabao comes to Berlin this Thursday, this "constitutional state dialogue" will once again come up in conversation. And though Wen and German Chancellor Angela Merkel are likely to sing its praises, in Germany the dialogue is controversial.

Supporters say this form of interaction can help strengthen those forces within China who want to implement a more constitutional state and a gentler way of handling dissidents. Critics, on the other hand, see it as a cover up for German politicians, who don't dare denounce human rights abuses in Beijing for fear of damaging trade relations with the country.

Born out of Business

No other country has such passionate debates as Germany when it comes to the right way to deal with China. When Merkel met the Dalai Lama in Berlin in the fall of 2007, Foreign Minster Frank-Walter Steinmeier denounced her move as political grandstanding. And just as with the Dalai Lama, the question with the "constitutional state dialogue" is how confrontational or cooperative Germany should be with China in particular, and with dictatorships in general.

Part of the controversy over the German-Chinese dialogue stems from the circumstances in which it began. When Merkel's predecessor Gerhard Schröder traveled to China in 1999, his main purpose was to close a deal on the construction of a German Transrapid magnetic-levitation train in Shanghai, as well as to initiate other business deals. Schröder had no interest in challenging China's communist leaders over human rights and jeopardizing these deals. Instead, he suggested a dialogue. The idea was to speak about the "reform of rights and other things," according to Schröder, "in the spirit of mutual respect."

That, he declared, "gives us the opportunity to take a gentle approach and to say what perhaps can be improved and must be improved."

Schröder's initiative has since developed into an expansive program. Germany's Ministry of Justice leads the project, but the department responsible for development is also involved. Round table discussions take place in government departments, universities and Max Planck Institutes. Political foundations take part as well, and even the German association of notaries has a role.

Much of the project continues as Schröder imagined it a decade ago -- especially when it comes to being discreet. True, his successor Angela Merkel doesn't shy away from speaking frankly at press conferences. But the idea of quiet dialogue as a means of policy with China has remained important. German politicians no longer need to express their criticism about the state of human rights during visits to Beijing. Instead, all they have to do is mention the ongoing dialogue. But the question then becomes: Is the dialogue working?

The project assists in the training of judges, it helps write laws and change practices. But its success has been limited. There are more judges in China, but there's not necessarily more justice. There are more laws, but there's still a great deal of arbitrariness.

'Forefront of the Dialogue'

And of course small Germany can't force the communist party dictatorship of a country with a population of 1.3 billion to become a democracy. Does it then make any sense to shift all discussion of a Chinese constitutional state over to secret working groups?

Judge Marc Spitzkatz, from the eastern German state of Brandenburg, sits in a plain lecture hall at Beijing's National Judges College, an unimposing campus with tiled buildings. Spitzkatz used to sentence traffic offenders in the city of Potsdam. Now Chinese judges, all from provincial courts, sit in front of him on red and gray chairs and listen to what the German expert has to say. "This is the forefront of the dialogue on the constitutional state," Spitzkatz says proudly.

Some members of his audience entered the legal profession later in their careers, without ever having attended law school. This afternoon they're going over a sample case with Spitzkatz. The question centers on what grounds company Y can demand money from insurance company X, after it had delivered five computers.

Spitzkatz confidently rattles off a couple articles of Chinese law and a young interpreter translates. The German judge tries to get his listeners to participate. "What is an offer?" he asks, or "What is a valid sales contract?" A few of the Chinese judges in the hall shyly call out article numbers, but somehow it all seems rather complicated.

"We really have no huge demands," says Hinrich Julius, who leads the "Legal Advice" project in Beijing. "We just want to communicate a fundamental idea to the judges: Read the law, understand it, act according to it." But the successes Spitzkatz and his colleagues have had are dwarfed by widespread conditions in China. Arbitrary decisions are still all-too common in China's judicial system, especially when it comes to trying critics and dissidents. Ten years of dialogue have not brought China any closer to abolishing the death penalty or the notorious re-education camps.

Responsibility lies with the Chinese Communist Party (CCP), which acts according to its own laws. A Chinese judge represents the local government and the party, not an independent legal system. And this means judges make their decisions based not on the laws but on the stipulations of the CCP.

Iron Grip on the Legal System

Civil rights activists see little sign that instruments such as the constitutional state dialogue with Germany will be able to bring about change to the system. "Those in power are afraid of every little bit of democracy," says Xu Zhiyong, a law professor in Beijing. He's a member of the "Open Constitution Initiative," a group of lawyers and legal experts that is trying to loosen the party's iron grip on the legal system.

Xu is campaigning for more justice and equity, but his organization is never among those invited to the German-Chinese discussion forums. The government chooses the participants for the discussions.

And even the politicians invited to these meetings often talk politely at cross purposes. When a group of German politicians and Chinese functionaries met for an exchange of ideas, Christoph Strässer from Germany's Social Democratic Party spoke his mind clearly. "We're concerned that the practice of torture is still widespread in China," he said. Moreover, he added, it's high time the death penalty was abolished. The abolishment of the death penalty is "naturally our wish and ultimate aim as well," replied his discussion partner, Shen Liang, a judge at China's Supreme People's Court. But it's just that unfortunately "at the moment it's not yet the right time" for China. Then he added an audacious claim: "The Chinese courts exercise legitimate independent jurisdiction and are not influenced by any organization, administrative body or individual person."

German Justice Minister Brigitte Zypries believes she can explain the significance of such a dialogue very well. The development of a constitutional state, she says, is "a slow process, in the course of which the party's role is discussed as well."

German politician Antje Vollmer, who was in China with Schröder in 1999, sees herself has having been instrumental in setting up the dialogue. And she still sees it as the only alternative.

The constitutional state dialogue is useful as an instrument of long-term development policy. But as a means for Germany to express its criticism for China's unjust justice system, it's not working. In that sense, Schröder's ploy can be seen as having failed. And it may even be that in his attempt to embellish economic policy with dialogue, he damaged that dialogue's ability to act as an instrument for change.

"The dialogue is only supplementary in character," says Günter Nooke, the German government's commissioner for human rights policy. "It can't replace policy."

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