The Rule of Law with “Chinese Characteristics”
posted by Robert Percival
I spent last week in China leading a spring break trip for 38 of my current and former environmental law students. I had warned the group that they would be shocked by how polluted the air was and that tap water was not safe to drink even in the best hotels. But when we arrived in Beijing the skies were the clearest I had ever seen during my 21 previous trips to China (including the six months I lived in Beijing in 2008 while teaching at the China University of Political Science and Law (CUPL)). Alas, the clear skies were not the result of dramatic environmental improvements in China. Instead they were the product of 40-50 mph winds that temporarily had blown away the pollution, which soon returned.
On the morning of our first full day in China our initial stop was Tiananmen Square, site of the 1989 massacre of pro-democracy protesters. Our group was allowed to bypass the security screening that the Chinese public must undergo before entering the square. While posing for a group photo, I was surprised when a member of our group unveiled a large banner that read “Thank You, Suzann” to honor our program coordinator who helped organize the trip. Fearing that this was some kind of political protest, Chinese police immediately converged upon our group. Our local guide started shouting that we might get arrested. But the confrontation was averted when we rolled up the banner and the police accepted our explanation. But it was a quick reality check on the limits of free speech in China today.
During our nine days in China our group visited public interest groups, law firms, and law schools in addition to tourist sites in Beijing, X’ian and Shanghai. In our meetings with Chinese students, lawyers, and law professors the group gained some insights into what it is like to operate in a legal system without an independent judiciary or a tradition of respect for the rule of law. One lawyer at a Chinese law firm in Shanghai described it as “the rule of law with Chinese characteristics.”
The public interest movement in China remains deeply frustrated because Chinese courts frequently refuse to accept even the most meritorious lawsuits. I spoke about the BP oil spill settlement at a workshop organized by the All China Environment Federation (ACEF), a group of environmental lawyers founded in 2005. ACEF represents a group of 107 fishermen who were harmed by last summer’s ConocoPhillips oil spill in Bohai Bay. But the Tianjin Maritime Court has refused to accept their lawsuit. Our group also visited the Center for Legal Assistance to Pollution Victims (CLAPV), which operates a hotline to field environmental complaints from all over China.
Zhang Jingjing from the Public Interest Law Network’s Beijing office, who has been dubbed “the Erin Brockovich of China,” met with our group and expressed hope that the National People’s Congress eventually would adopt new legislation to facilitate public interest lawsuits. Our group also met with Zhenxi Zhong from Shanghai Root and Shoots, one of the few NGOs officially licensed by the Chinese government. Roots and Shoots, a group initially formed by Jane Goodall, is working in more than 200 schools in the Shanghai area to improve environmental education.
There are now more than 20,000 lawyers in Beijing and 14,000 in Shanghai. We visited a U.S. law firm’s Beijing office and a Chinese law firm’s Shanghai office where we had remarkably candid discussions of the challenges of legal practice in a country where politics trumps law. The U.S. law firm is not licensed to practice law in China so it hires Chinese law firms to implement its work product. It prefers to avoid the Chinese courts by using arbitration whenever it can. Aware of the Foreign Corrupt Practices Act, the U.S. lawyers have the Chinese law firms they hire sign non-corruption pledges.
The Chinese law firm in Shanghai hosted our group for its Friday afternoon discussion session. Their members explained that judges in China do not have to be lawyers and many of the most prominent judges are not lawyers, but rather were selected because of their strong ties to the Communist Party. Witnesses rarely come to court in China even when they are asked to do so. Disputes over siting new industrial plants usually are resolved not based on the law but on political power. Localities eager to attract industry make required environmental assessments a perfunctory exercise and local officials try to pressure lawyers not to bring environmental challenges. Siting decisions for power plants and new industries usually are made without consulting the public and there is little chance for lawyers to block them in court. When they are blocked, it invariably is due to the ability of opponents to generate sufficient public opposition to a project, rather than due to enforcement of the environmental laws.
There is some sense that change is in the air, a perception encouraged by China’s upcoming leadership transition and Premier Wen Jiabao’s public pleas for greater political and economic reform. The Chinese law students we met were hopeful that one day China will have an independent judiciary and strong respect for the rule of law. These students included moot court teams from CUPL and the Beijing Institute of Technology who did a practice round for us in advance of their coming to the U.S. to compete next weekend in the finals of the Stetson International Environmental Moot Court Competition.