Judicial Review in India and China

Today's New York Times reports on the end of a minor insurrection in which a Chinese judge attempted to invalidate a local law on the grounds that it contravened a national law. I think it is fair to say that it didn't quite make it to the level of a Chinese Marbury vs Madison - she failed to get her reasoning written into law. The contrast with the Indian situation, where since the 1967 decision in Golak Nath vs State of Punjab the Supreme Court has held that even constitutional amendments are justiciable is striking.

PS: A reader asked for an explanation of Golak Nath. Here goes:

Following a slew of constitutional amendments, passed by Parliament, the Indian Supreme Court first articulated, in this case, the position that some aspects of the constitution could not be amended by Parliament (even with the specified procedure) if they tampered with the basis structure envisaged by the founders. The actual judicial history is somewhat complicated and is discussed here but the bottom line is the Indian Supreme Court not only gets to decide the constitutional status of laws but that of constitutional amendments themselves which is a significant check on legislative power. In this sense the Indian Court is perhaps the most powerful court in the world.

Harbin and China's Environment

Writing in the aftermath of the Harbin disaster, Elizabeth Economy of the Council on Foreign Relations paints a grim picture of China's environmental problems . She argues that:

It is easy to blame China's rapid economic growth for this devastating situation. Scant attention has been paid to the costs of pollution or resource degradation engendered by this dramatic economic development. Central government investment in environmental protection remains well below the 2.2% of GDP Chinese scientists claim is the minimum necessary to prevent further deterioration. Pollution fines are so low that factories often elect to pay them rather than take corrective measures. Water is typically priced far below replacement cost, discouraging recycling or conservation.

Fault, however, also rests deep within China's political system. While officials in Beijing routinely pass laws to protect the environment, local officials and factory managers collude to evade them. Many enterprises and municipalities are so confident in their ability to ignore the law that even when they possess appropriate waste-treatment facilities, they elect not to use them in order to avoid operational costs. Local environmental protection bureaus and courts are also beholden to local governments rather than to central government agencies, making them particularly susceptible to political and economic pressure. With few incentives for factory managers and local officials to do the right thing and even fewer disincentives to do the wrong thing, environmental officials face an uphill battle.

Sadly, this does not, prima facie, sound that different from India. If readers are aware of any quantitative environmental assessments of the two countries, please let us know.

Blogs and China

China's government is locked in an ongoing contest with advances in information technology. At issue is whether these advances have the effect of enhancing freedom of expression or whether they can be turned around to efficiently regulate expression. A New York Times story on blogging in China indicates that the proliferation of blogs is leading to the loosening of social restraints as well as political ones. Especially notable is this passage:

A leading practitioner of the sly, satirical style that is emerging here as an influential form of political and social commentary is a 38-year-old Beijing entertainment journalist named Wang Xiaofeng. Mr. Wang, who runs a site called Massage Milk, is better known to bloggers by his nickname, Dai San Ge Biao, which means Wears Three Watches.

His blog mixes an infectious cleverness with increasingly forthright commentary on current events, starting with his very nickname, which is a patent mockery of the political theory of the former Chinese Communist Party chief Jiang Zemin, which was labeled San Ge Dai Biao, or the Three Represents.

In a recent commentary, as the government stoked patriotic sentiment during the commemoration of the defeat of the Japanese in World War II, Mr. Wang asked who really fought the enemy, making the provocative observation that only two Communist generals had died fighting Japan, while more than 100 of their Nationalist counterparts had.

"In blogging I don't need to be concerned about taboos," Mr. Wang said. "I don't need to borrow a euphemism to express myself. I can do it more directly, using the exact word I want to, so it feels a lot freer."

We'll have to see how long Wang gets to express such sentiments. The point that the Communists barely fought the Japanese is particularly incendiary as it cuts at the roots of the story the regime tells about itself. The recent Mao biography by Chang and Halliday documents the lack of Communist resistance to the Japanese at some length - turning on its head the long retailed myth of Mao's nationalism.

Assessing Chinese Debates

Srikanth Kondapalli is one of India’s leading experts on China. He is a Research Fellow at the Insitute of Defense Studies and Analyses in New Delhi and the author of China's Military: The PLA in Transition, China's Naval Power, The People's Liberation Army: Evolving Dynamics and A Great Leap Forward Modernisation. Earlier this year he took part in the first biennial conference of the World Forum on Democratization in Taipei. In his presentation “The Rise of China & Implications to Asia” which is available here, he surveyed the Chinese discussion on the prospects for its rise, its democratic prospects and military modernization. In his conclusions he notes that:

China, as stated above, has argued that it is opposed to hegemonism and power politics and also the threat or use of force in international relations and advocates the settlement of international disputes through peaceful means. Laudatory as these statements are and, if implemented sincerely by China or other countries most of the conflicts that afflict the world could be resolved. Nevertheless, the track record of China in this regard is inconsistent and contradictory, if not suspect. Several examples may be cited regarding the threat or use of force by China to solve disputes. While China argues that resolving the Taiwan issue is its internal matter, in the age of globalization, it is difficult to conceive of a subject as purely internal, especially as armed preparations are being made to resolve issues. The 1995-96 events are a pointer that many countries of the region may be affected in terms of trade, shipping, insurance, stock exchange and environmental security.
China’s stance on the South China Sea dispute, likewise, is contradictory and intrusive. While China has stated that it is ready to postpone the settlement of the sovereignty dispute, this, nevertheless, did not prevent it from employing its naval forces in interfering constantly in the region as the Philippine Navy has pointed out. Vietnam is wary of Chinese intentions and capabilities as well in the Paracels, though it has signed an agreement on the Gulf of Tonking issue and is willing to work with China.
China’s threat of use of force during the Indo-Pakistan conflicts of 1965, 1971, 1999 is well recorded. China’s arms sales to several countries in South Asia, Southeast Asia and the Middle East, though on a smaller scale as compared to other countries, are detrimental to regional stability. Continuing transfers of weapons of mass destruction or technologies from China to Pakistan or other countries, has not only exposed Chinese claims to be a “responsible” rising power but has also raised concerns among neighboring countries. Its arms sales to both the warring states of Iran and Iraq at the same time during the 1970s are inexplicable and opportunistic. This has been the context for the growing suspicions of its neighboring countries about the nature and dynamics of the Chinese defense sector and also the launch of the “good neighbor” policy, the sincere implementation of which will be watched closely by all concerned neighbours.

I should also note that our colleague Arthur Waldron delivered a keynote address at this important conference.

Bush Challenges China on Political and Religious Freedoms: But Does He Have an Asia Strategy?

With the visit of the US President to Asia, the US is once again trying tograpple with the momentous transformation that has taken place in globalpolitics in the last few years. The locus of international politics hasvirtually shifted from Europe to Asia and the President’s 4-nation tour of Asia is an acknowledgement of this reality. His visit comes at a time when the Bush Administration is trying to carve out a coherent strategy for Asia.

The underlying thrust for this recasting of US security strategy for Asia iscoming from China’s phenomenal rise as a global economic and political power inthe last few decades. China’s extraordinary rates of economic growth have givenit the ability to modernize its military rapidly. As a consequence, the balanceof power is Asia has undergone a radical transformation in the last few yearsand has given rise to new regional tensions. The emerging Sino-Japanese tensions are just one of its manifestations. Despite growing economic tiesbetween China and Japan, Sino-Japanese diplomatic relations are at an all timelow. A range of political and territorial disputes have plunged relationsbetween Asia’s two biggest powers to a historic low.

Japan has made it clear that it considers China a potential military threat thatwould have to be faced and countered in the coming years. This was followed byJapan’s announcement that a peaceful resolution of the Taiwan issue is astrategic objective that it shares with the United States, signaling to China that it might help America defend Taiwan in the event of a war. For its part,China has strongly opposed Japan’s bid to become a permanent member of theUnited Nations Security Council on the grounds that Japan has failed to show sufficient contrition for its wartime atrocities. But the real reason might bereluctance on the part of China to view Japan as global power on par withitself.

During the recent visit of the Secretary of Defense, Donald Rumsfeld to Japan,the US and Japan signed a major mutual-security agreement that will lead to anew security architecture in Asia-Pacific. The ultimate aim of the recent agreement is to help Japan became more able to counter a range of threats toits security. Towards this end, a closer US-Japan military cooperation isenvisioned, including the basing of an American nuclear-powered naval vessel ina Japanese port. During his visit President Bush also emphasized America's closepolitical, economic, and security ties with Japan and made it a point tochallenge China on its record on democracy. He went to the extent of suggesting that China should emulate the democratic progress of Taiwan.

There were no major breakthroughs in Sino-US relations during the recent visit as was expected. But the trip clearly revealed the evolving US strategy towards Asia.Even as the US continues to engage China economically, it is becoming wary of China's authoritarian character and rising military prowess. The US Secretary of Defense has already openly questioned double-digit percentage increases in Chinese military spending. But US policymakers have come to accept China's rising economic and political profile as a fact that the US must learn to manage rather than openly challenge. And the US is trying to manage China's rise by cultivating other allies in the region.

It is in this context that India's role becomes much more significant. The strategic environment that had constrained Indo-US ties in the past from achieving their full potential is now an enabling factor, as Indo-US ties are at an all-time high. Whether India likes it or not, India’s role is set to become the determining factor in shaping the security environment of Asia in the next few decades. It remains to be seen if the Indian government is capable of taking on this challenge.

Iraq and Vietnam

The events of the past few days in the United States Congress have sharpened the sense that the steady erosion of support for the US presence in Iraq is starting to bite. Naturally, this brings up visions of Vietnam.

The two conflicts are, of course, quite different in their details. In Iraq the US faces an insurgency with private support but not a conventional foe with support from major states as it did in Vietnam. One commonality though is the common initial failure to focus on building up local regimes with sufficient independence to fight for their own survival---in both cases this was a political failure above all.

At any rate the history of the second half of the Vietnam conflict – the failed “Vietnamization” strategy, is now again of interest for any lessons it might contain for the current building up of the post-Saddam Iraqi state. Nixon then Secretary of Defense, Melvin Laird has weighed in to argue that Vietnamization failed only because the US Congress deserted South Vietnam while the Soviets and the Chinese kept arming the North. Two recent articles (here and here) by Richard Miniter examine the Vietnam-Iraq parallels in some detail and argue also that there are no real lessons to be learned, the insistence of the media notwithstanding. These articles build on a study by Jeffrey Record and W. Andrew Terrill last year.

There is though the important aspect that Iraq still has to solve the problem of reconciling the Sunnis to (democratic) Shia power – a challenge with no real parallel in Vietnam either. While continued American support is essential to the emergence of a new Iraq, a crucial ingredient will have to come from the Iraqis themselves.

It is scarcely necessary to note that the future of Iraq is of considerable importance to India. A triumph for the insurgency there would be viewed as a triumph for Al Qaeda worldwide and can only fan flames close home that India would be better off without. For that matter the fall of Saigon inaugurated an era of Soviet adventurism that led to Afghanistan and, eventually, to much trouble for India in its own neighborhood.

The Indo-US Convergence

Ashley Tellis has played a key role in the Bush Administration's major inititiative on India. In this testimony before the Committee on International Relations of the US House of Representatives he lays out elegantly and powerfully the intellectual rationale for this development. This is in the context of hearings on the proposed US-India nuclear deal initialled during Prime Minister Singh's recent Washington visit. His basic, completely correct, argument is that the United States would be better off if Asia's rise involved a democratic and liberal India as a significant force regardless of whether India actually becomes a close ally. However, the piece (not too long) is worth a full read.

Indians and Indian-Americans who share a socially fashionable disdain for the Bush Adminstration should compare Tellis's position with that of the New York Times editorial page which seems blissfully unaware that Chinese military spending has been growing at a torrid pace for a period longer than the Times has had Mr. Bush in its crosshairs.

MLSIAPA activities

The last week has seen two seminars involving the MLSIAPA.

The first, The Rise of China and its Implications for the Rest of Asia was held on November 12th at the India International Center, New Delhi and was organized by the MLSIAPA. Our colleagues Bharat Karnad and Ashok Kapur took part along with a group of distinguished experts. We will post a fuller account soon.

The second, Regional and Global Terrorist Threats: The Way Out was held by the Centre for Research into Rural and Industrial Development in Chandigarh and the Kurginyan Centre of Moscow in association with the Professor ML Sondhi Memorial Committee, November 8th to 10th. The seminar was formally inaugurated by the Prime Minister of India on November 9th, and also addressed by the Chief Ministers and Governors of Punjab and Haryana.

It witnessed lively interactions between Russian, Israeli, Pakistani, Nepalese and Indian delegates, reflecting their divergent encounters with terror and the lack of a comprehensive and universal definition of terrorism. Although the guests were comfortable with the working definition of terrorism at the use of violence against innocent civilians for political or other ends, the Indian legal representative pointed out that the UN had many suggested definitions none of which were yet regarded as definitive. Hence it was not possible to evolve a legal response to the phenomenon, which remained open to multiple interpretations.

A critique was also offered of the ‘global’ war on terror: it was pointed out that the causes of terrorism are always local. The Sri Lankan Tamils, the Palestinians, the Nepalese Maoists and the IRA are responding to problems born out of local particularities and in that sense terrorism is not a global phenomenon. But it was counter-argued that operationally all terrorist groups are now interconnected if not mutually supportive, and that global or international cooperation was necessary to cope with these challenges. However with the complexity of the interconnected world, various paradoxical situations arise such as the USA’s alliances with Saudi Arabia and Pakistan – the one the financier and possibly central director of many Islamic terrorist groups, and the other the training ground for terrorists who fan into all quarters of the globe.

The seminar ended with a resolution to continue the discussion on the regional and global manifestations of terrorism by the concerned institutions, by agreeing to meet at periodic intervals on a regular basis.

Border Talks: From Tawang to the Indian Ocean

The Tribune has a report on the India-China border talks which presumably reflects a leak from the Indian side either intended to stiffen India's negotiating at the talks or simply to dampen expectations that anything might emerge from them.

At any rate the report indicates a fairly wide set of strategic disagreements. It says, in part:

The Sino-Indian border issue has entered the real phase. Two separate compartments, which will complement each other eventually, have become discernible.

One is the actual border demarcation. In the Chinese concept, the border length still remain, 2,000 km, while in the Indian concept, it is about 4,000 km. Tawang is repeatedly claimed, as the 6th Dalai Lama was born there. That is just one.

Other big issues include security of the Indian Ocean sea-lanes for their energy security as 70 per cent of China's oil imports traverse the Indian Ocean route. Chinese missiles cover these routes, and its navy will soon be flying its flag permanently in the Indian Ocean. On this issue China will not countenance any Indian resistance.

From the greater regional and global perspective, Beijing has put New Delhi's new active foreign policy under a microscope. How does India's growing military capabilities supplement its foreign policy objectives and can impact China's controlling interests in greater Asia. The Indian Navy's exercises with the US Navy, on the one side, and with Southeast Asian navies in China's backyard have raised eyebrows in Zhongnanhai.

What all of this suggests is, as one should expect, that as Chinese capabilities grow strategic friction will be spread over a larger set of issues. In response India will have to boost its capabilities with a much more specific focus on China. Historically, Indian defense spending has been disproportionately Pakistan-centric and so this correction will require some renegotiation of priorities between and within the services.

Readers interested in looking at maps of the disputed areas can find them here (western sector) and here (eastern sector). Tawang can be seen on the latter.

USCC issues 2005 report

The US-China Economic and Security Review Commission was created by the United States Congress in 2000 to monitor, investigate, and submit to congress an annual report on the national security implications of the bilateral trade and economic relationship between the United States and the People's Republic of China, and to provide recommendations, where appropriate, to Congress for legislative and administrative action. For more background on the commission see here.

I would be remiss if I did not note that our colleague Arthur Waldron has served a two year term on the commission.

Last week the commission released its annual report for 2005. The report adds to the general and growing unease in the US about Chinese power and intentions which we have discussed often on these pages and also bemoans the lack of a clear national strategy on the part of the United States. Among its specific concerns I was interested to see the rising worry about the difficulties of defending Taiwan and the recognition that the altered global energy landscape creates more stress. On the former, the recommendation that senior US military personnel be permitted to visit Taiwan to better plan for conflictual contingencies, seems eminently sensible. The current situation where there is significant sentiment in both Taiwan and the United States that the other is not serious about Taiwan's defense is not conducive to maintaining the status quo. On the latter, there is evidence that Chinaitselff needs to get real about energy prices as discussed here by James Hamilton.

India to consume her way to greatness

Stephen Roach, Chief Economist of Morgan Stanley, is generally a pessimist. In the past he was often warned of trouble for the US and has been less than impressed with the impact of information technology. But he is all for the Indian consumer who he expects to power a more robust economic growth in India and globally. In discussions of India verus China, this is certainly a comparison that has not received much attention before.

China's Quest For European Military Technology

John Tkacik argues in the Wall Street Journal that China's quest for arms from Europe has run into serious trouble with changes in Germany, troubles in France and increased American vigilance.

For a more "bottom-up" view of what is at stake see this report from the Jamestown Foundation on China's attempts to acquire military technology from the Czech Republic.

Social unrest in China

Writing in the Financial Times (November 6th) Minxin Pei has some interesting numbers on social unrest in China:

When Chinese leaders visit foreign capitals, they usually bask in the glow of the supercharged economic growth China has sustained for the last quarter-century. But there is another growth story they prefer not to advertise: social unrest. Measured by various indicators, social tensions in China have risen to record levels. The number of so-called “mass incidents” (sit-ins, riots, strikes and demonstrations) reached 74,000 in 2004, an all-time high, and involved about 3.7m individuals. In 1994, by comparison, there were about 10,000 such incidents, with 730,000 participants. The number is rising. Already this year, the number of petitioners to the central government, a reliable barometer of social tensions in the provinces, has reached a new high.

China Opposes Indo-US Nuclear Deal: Surprised, Anyone?

China is now openly criticizing the recently signed Indo-US nuclear agreement and trying to present itself as the great votary of nuclear non-proliferation. After doing its utmost to cripple the nuclear non-proliferation regime by helping all kinds of regimes in their nuclear weapons programs, China is now worried that India might just get some benefits for being an exemplary nuclear power. China had one of the most irresponsible nuclear powers and has supported states such as Pakistan and Iran in their nuclear aspirations despite its obligations under the NPT. China’s policy has been to “work against American counter-proliferation policy until get caught, then deny charges, only to subsequently, and much belatedly, recant to say that it will not happen again.”

India has never been a party to the NPT and despite this it has a great record in non-proliferation. It is this responsible behavior that the US wants to acknowledge with the new nuclear pact with India. China’s reaction is a sign of nervousness at the newfound acceptance of India’s nuclear status in the international community. It is also interesting to note that while China is upping the ante in opposing the Indo-US nuclear deal, the Communist parties in India are also hell-bent on destroying the upward trajectory in Indo-US relations, going to an extent of opposing Indo-US military exercises.

China has over the years done its best to maintain a rough balance of power in Indian subcontinent by preventing India from gaining an upper hand over Pakistan. It has consistently assisted Pakistan’s nuclear weapons and ballistic missile programs to counterbalance India’s development of new weapons systems. India’s preoccupation with Pakistan reduces India to the level of a regional power while China can claim the status of an Asian and world power. China remains the only major power in the world that refuses to discuss nuclear issues with India for fear that this might imply a de facto recognition of India’s status as a nuclear power. It continues to insist on the sanctity of the UN resolution 1172 which calls for India (and Pakistan) to give up its nuclear weapons program and join the Nuclear Non-Proliferation Treaty (NPT) as a non-nuclear weapon state.

The Indian government should keep this in mind while formulating its policies towards China. But does India have a China policy?