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China’s dual bar

Troubled World
China’s dual bar
Illustration: Scott Page

China’s legal profession has two faces: One is a functioning commercial bar, the other is an oppressive arm of the state.

Today, it’s all about China.

Once upon a time in the West, China was an unknown land. In the occidental imagination, it was full of peasants wearing conical hats labouring in paddy fields. Poverty stricken, it was run by elaborately festooned emperors and then ideological megalomaniacs. It was a curious and romantic far-off place of no practical importance. As for the Chinese legal system and legal profession, no one other than the occasional obscure scholar knew anything about it. That was OK. After all, what did it matter?

But it’s different now. China “doth bestride the narrow world/ Like a Colossus, and we petty men/ Walk under his huge legs and peep about” (Shakespeare’s Cassius, describing Julius Caesar). China’s economy is the second largest in the world measured by gross domestic product. It is the world’s largest manufacturing economy and exporter of goods. Within the next decade, as per capita productivity increases, China’s economy will outstrip that of the United States in every important respect. Its infrastructure is developing at a dizzying pace — trains, bridges, ports, airports, dams. Its armed forces are growing rapidly in size and sophistication. Increasingly, China is investing and building elsewhere in the world, extending its foreign power and influence. And, more and more, foreign suitors — like our very own Prime Minister Justin Trudeau — come to call, hat in hand, buying and selling.

Generally, this kind of dramatic development — speedy evolution into a modern and very powerful state — does not happen without the rule of law, a vibrant legal system, an independent judiciary and an independent and respected legal profession, all smoothing the way in life and commerce, nationally and internationally. Development and expansion of the state and the economy require legal professionals who specialize in structuring intricate arrangements and crafting compromises. They require institutions that will impartially enforce agreements and will resolve complex business and property disputes.

At a glance, to an outsider, China fills the bill, in some respects at least. The commercial bar of China looks like that of other advanced countries, with large multi-office partnerships engaged in sophisticated transactions (although the numbers are surprisingly small — it is estimated that there are about 350,000 lawyers in China, which has a population of 1.4 billion, compared to about 120,000 lawyers in Canada).

But the Chinese lawyer you meet if you go to Shanghai on business or who shows up for a meeting on Bay Street in Toronto or Burrard Street in Vancouver is not representative of the country’s profession as a whole. In a 2013 study written for the International Bar Association, Chinese lawyer Chen Youxi described the story of his country’s legal profession as a tale of two cities. There is what appears to be a prosperous and confident civil and commercial law bar. But there is another world — lawyers who deal with administrative and criminal matters, particularly so-called “rights defence” (weiquan) lawyers. Weiquan lawyers often face what Chen Youxi calls “insurmountable challenges.”

Even Chinese commercial lawyers, prosperous and sophisticated, operate in a system where, to function effectively, they have to turn their faces to the wall and pretend things are not as they really are. For, in China, state power and the power of the Communist Party are supreme. The purpose of any part of the legal system, including the civil and commercial bar, is to buttress that power. Veteran China watcher Jerome Cohen has written recently, “In principle the party controls the legal system at every level; the central political-legal commission, which operates on behalf of the party central committee and its politburo leaders, tells every legal institution what to do.” The Chinese legal system is as different from Canada’s and those of other western democracies as it could be. In Canada, a principal function of legal institutions is not to serve the state and the government but to protect the citizenry from them.

The Chinese legal system is, at bottom, primitive and corrupt. The December 2015 United Nations report on China’s compliance with the Convention against Torture enumerated a very long list of abuses within the Chinese legal system when it comes to administrative and criminal matters, including the use of torture, excessive length of detention before any court appearance, restrictions on rights to legal representation and residential surveillance amounting to incommunicado detention. The report’s most damming finding was escalating abuse of lawyers for carrying out their professional responsibilities mainly, but not exclusively, in human rights matters. “Such abuses include detention on suspicion of broadly defined charges, such as ‘picking quarrels and provoking trouble,’ and ill treatment and torture while in detention. Other interferences with the legal profession have been, reportedly, the refusal of annual re-registration, the revocation of lawyers’ licences and evictions from courtrooms on questionable grounds. . . . The Committee expresses concern at the all-inclusive category of ‘other conduct that disrupts court order’ in various articles of the Law on Lawyers, the Criminal Procedure Law and in the newly amended article 309 of the Criminal Law, which in its view is overbroad, undermines the principle of legal certainty and is open to abusive interpretation and application.”

The courts provide no protection against these evils; indeed, they are active collaborators in their perpetuation. Chinese President Xi Jinping has made clear that the courts must submit to the discipline of the central party and judicial officials who are directed by the state and the party. In January 2017, Zhou Qiang, president of the Supreme People’s Court and China’s highest-ranking judge, denounced the idea of an independent judiciary as a “false Western” idea.

Should a Canadian lawyer care about any of this? I think so. Be wary of that Chinese business lawyer who comes to call: Remember, at the end of the day, they’re working for the state. Don’t expect a fair shake from Chinese courts. And do whatever you can to help courageous and oppressed Chinese human rights lawyers.

Philip Slayton’s latest book is How To Be Good: The Struggle Between Law and Ethics.