Is it a slow boat to China embracing the role of law?

By STEPHEN O’ROURKE
Published on 09/04/2012 00:00

“China’s legal system is playing catch-up with the wider socio-economic changes”

Here in the west there is an assumption that things change very slowly in China. The example often given is the exchange between US president Nixon and Chinese premier Zhou Enlai during Nixon’s historic 1972 visit. The topic of discussion was the French Revolution; and when drawn upon how it had panned out, Premier Zhou replied “it’s too early to say”.

There are two things which the story highlights. Firstly, according to recent comments by President Nixon’s now retired translator Charles Freeman, Premier Zhou was actually referring to unrest in late-1960s Paris. The story accordingly demonstrates the power of myth: we prefer the idea that Zhou was commenting on the 18th-century revolution because it fits with our preconceptions of China always making a long, considered assessment of world affairs – but is that a fair reflection of modern China?

Secondly, the story hints at scepticism on the part of China to embrace democracy and the building-block principles of separate legislative, executive and judicial functions: but again, is this an entirely fair picture?

China’s legal system is playing catch-up with the country’s wider socio-economic changes, but there are signs nonetheless that the Communist Party-dominated National People’s Congress – the world’s largest parliament – is gradually extending power to the intricate Chinese judicial system under the umbrella of the Supreme Court.

Last month both the president of the Supreme Court, Wang Shenjun, and the state prosecutor, Cao Jianming, made their annual reports to parliament.

The Supreme Court president noted the growth of intellectual property litigation, while the prosecutor affirmed a continuing policy to tackle corruption, citing the examples of seven ministerial-level officials and numerous civil servants being investigated last year. Both senior officials also addressed international and domestic concerns about the criminal justice system, concerns which have caused parliament to pass laws clarifying the position of detainees, a notoriously dark issue.

The plight of one of China’s most influential artists, Ai Weiwei, is a case in point. The 54-year-old is an outspoken critic of the state who, in April 2011, was detained moments before boarding a flight to Hong Kong then held in secrecy for 81 days. In a separate incident, prominent human rights lawyer Gao Zhisheng simply disappeared for 20 months before his family were recently informed of his detention in a remote prison. Only last week the China Post confirmed that his family had finally been allowed to visit him for half an hour.

While the law passed by parliament has affirmed the right of the state to detain suspects without notifying their families, it is perhaps something of a small victory in itself that the legislature has felt the need to respond to both domestic and international pressure to regulate the practice.

Meanwhile in the commercial sector, from a standing start in Beijing 20 years ago, Decheng (now a top-ten Chinese law firm) recently celebrated the attainment of 2,600 lawyers and staff in their offices across China and worldwide. Decheng are far from alone: King & Wood, Grendall, Jun He and Guanghe are other Chinese firms which have likewise taken a firm hold in China’s rapidly expanding market economy.

At the same time, international firms have been quick to open offices, with recent figures showing Baker & McKenzie now has 269 lawyers in the country, DLA Piper 140 and Lovells 111. The domestic legal services industry is growing, and China has many thousands of university-educated young people who return from the west each year and contribute to the knowledge economy.

All in all there are signs that the role of law, if not exactly the rule of law, is increasing: but perhaps, to paraphrase Premier Zhou, it’s simply too early to say.

•Stephen O’Rourke is an advocate and member of Terra Firma Chambers