This was published 13 years ago
China's straight shooters
Despite the tangle of law, politics and corruption, there are some Chinese lawyers determined to improve their country’s legal system.
By John Garnaut
AYEAR ago I showed a doyen among China’s civil rights lawyers, Mo Shaoping, a back copy of Hong Kong’s Asia Week magazine. He was one of 14 of China’s leading lawyers pictured on its cover.
‘‘They fully deserve to be Asia Week’s ‘People of the Year’ because in 2005 they have brought dazzling light to institutional reform,’’ said the inside story.
Between that article, in 2005, and my conversation with Mo, in November 2009, the careers of 11 of the 14 featured lawyers had run into serious trouble. One of them, Gao Zhisheng, publicly wrote about how he had been badly tortured. He has now ‘‘been disappeared’’ — in the sardonic use of the passive tense that has become common here — and detained without any legal process at unknown locations for most of the past two years.
A few of the 14 lawyers who had not disappeared got together that night to reminisce about old times.
‘‘Now, it’s only me, Pu Zhiqiang and Fan Yafeng,’’ said Mo at the time. ‘‘The others are either in jail or have had their licences removed.’’
Law, politics and corruption are tangled so tightly together in China that it is impossible to invest faith in any given legal outcome. Criminal proceedings are commonly used as leverage in commercial disputes.
This is a growing problem for foreign businesses and especially their ethnic Chinese executives, such as Australian Matthew Ng, who has been arrested for ‘‘embezzlement’’ in Guangzhou in the context of a dispute with a locally powerful state-owned firm. If he is convicted, then that fact alone will not be enough to convince many observers that he is guilty.
The Chinese legal system can be a tool of unexpected tragedy to foreign business people, but it is an everyday migraine for home-grown entrepreneurs. There are so many laws and regulations in China it is almost impossible to avoid bending some of them.
These rules are designed to be sufficiently ambiguous to place huge administrative discretion in the hands of officials.
They can be bent at a price or avoided at some risk. And that’s where entrepreneurs are expected to discreetly bribe their way to opportunities and insurance in case things go wrong.
The standard way of ensuring that the legal system works for, rather than against you, is to lubricate relations with and between lawyers, prosecutors and judges. This requires intricate ‘‘guanxi’’ relationships and expensive and often incredibly indirect and complex transactions.
If your business is big, then you need to make your favours big and send them higher up the tree. But then you risk becoming a pawn in larger political games, like Huang Guangyu, the founder of Gome Electronics and formerly China’s richest man, whose protection payments extended at least as high as the Vice Minister for Public Security. Decisions in China are made in favour of power or money, and typically both.
This is the system of crony Communist Party justice that the 14 ‘‘People of the Year’’ have been challenging by introducing professional legal ethics and practices. But since 2007, a campaign to promote ‘‘professionalism’’ in the legal system has been dropped and replaced with ‘‘politicisation’’.
Over the past year, the ‘‘dazzling light’’ of Chinese legal reform has receded further over the horizon. The remaining three ‘‘people of the year’’ — Pu, Fan and Mo — have also run into trouble.
Mo Shaoping has long been known as a progressive lawyer who has one foot firmly planted in the official camp.
He can represent ‘‘sensitive’’ clients and talk to foreign reporters in ways that others can’t. But now he has been gagged and prevented from leaving the country because he is a friend of Liu Xiaobo, the writer who received a Nobel peace prize and an 11-year jail sentence for helping to organise the democratic manifesto Charter 08. Mo’s law firm is representing Liu, although police blocked him from having a personal role.
‘‘No, I’m not busy, but it’s extremely inconvenient to talk to foreign media now,’’ Mo told me yesterday.
Professor Fan has been sacked from his government job and harassed on multiple occasions, including violently, most recently when attempting to meet other associates of Liu’s.
And Pu Zhiqiang was detained at an impromptu celebration banquet on the night of Liu’s prize. He says it is ‘‘not convenient’’ to talk about Liu Xiaobo, but nobody will stop him talking about China’s legal system.
I asked Pu whether China’s commercial law system had advanced in recent years, even while the ‘‘rights protection’’ movement had been punished.
He said China’s laws and regulations were getting better and more integrated with international best practice, but government interference was getting worse. ‘‘The problem is a lack of social trust,’’ he said, pointing to chronic fraud on investors, manipulation by regulators and the case of Huang Guangyu. ‘‘China’s judicial reforms are going backwards.’’
The extraordinary thing about each of the 14 ‘‘dazzling lights’’ is that none appear to have lost their belief in the cause of building a decent justice system, despite the incentives dangled in front of them and punishments meted out. The dream of a decent Chinese legal system is being kept alive.
When Pu Zhiqiang was released from detention, he immediately tweeted how a certain public security officer had accused him of being ‘‘a damn f---ing traitor to your motherland’’ for accepting foreign media interviews, like Liu Xiaobo. Pu tweeted that he had replied in kind.