The Increased Politicization of China’s Legal System

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This article was prepared by James Zimmerman, an American lawyer living and working in China since 1998 and the author of the China Law Deskbook. The views expressed are his own.

Jul. 27 – Since the end of the Cultural Revolution in 1976, when the legal system all but ceased to exist, China has taken significant steps to reform its laws and regulations, judiciary and court infrastructure. China has promoted international legal exchanges, including sending tens of thousands of law students, lawyers and judges to the West for legal training. Much progress has been made, but the system is still a work in progress.

Notwithstanding 30 years of progress and reform, the Chinese government continues to politicize its legal system by requiring all lawyers to submit to a loyalty oath to the Chinese Communist Party and its leadership.

China’s Ministry of Justice issued the requirement on March 23, 2012, which provides that Chinese lawyers must not only uphold the law and the PRC Constitution, but also swear “to uphold the leadership of the Communist Party of China and the socialist system.”

This oath is mandatory for all Chinese lawyers working for Chinese law firms, and a Chinese lawyer that refuses this oath will be declined a practitioner’s license. This rule does not apply to foreign lawyers. Nor does it apply to Chinese qualified lawyers working for foreign law firms, since they are effectively required to suspend their practitioner’s license in order to join a foreign firm.

While much of the oath’s language is a reasonable reflection of the duties of the members of the legal profession, the Party loyalty requirement is a reminder that the Chinese judicial system and Chinese lawyers and law firms are not independent from the political process. Their expressed loyalty — notwithstanding any individual attorney’s personal views — is first and foremost to the political party in control of the State.

It’s one thing that the ethical standards for Chinese lawyers and law firms are vastly different from U.S. law firms. For example, in China, there is an absence of attorney-client privilege and the law firm, not the client, owns the file materials. Still, the requirement of a loyalty oath to the Communist Party is interference, at best, and clearly a violation of China’s own Constitution (Article 35, freedom of association) and 30 years of commitment to rule of law.

Most Chinese lawyers don’t give this a second thought and are too busy trying to make a living. Those that disagree with the loyalty oath roll their eyes and view it as a joke or as non-binding. Those that tend to agree with the oath toe the Party line and emphasize the current need for political stability and the importance of social harmony. All would agree that further legal and political reform lies far in the future.

Some law firms in China have used their Party ties and loyalty to grow their business, especially with Chinese companies and government-related legal work. Most law firms with foreign clients tend to hide their Party activities from foreigners. A comparison between the Chinese and English language versions of some Chinese law firms’ websites, for example, brings this practice to light. Such websites tend to erase the Party activities from their English version, while prominently describing them in the Chinese version. Such practices raise serious concerns that these firms are misleading their foreign clients.

Having worked with Chinese lawyers and law firms for over 20 years, I find the MOJ’s oath requirement to be an obstacle to Chinese lawyers, law firms, judges and academics, who seek to improve the quality of the legal system in China. Chinese lawyers deserve better. Their clients deserve better.

Until China moves in the direction of a truly independent judiciary and legal system, Chinese lawyers and law firms will never get the international respect for which they yearn. As the practice of law continues to globalize — as witnessed by the recent expansion of Chinese law firms to international destinations such as New York, London and Hong Kong — Chinese lawyers and law firms must realize that their own politicized rules of practice will limit their opportunities, if not block their international expansion.

The MOJ is misinformed if they believe that Chinese lawyers and law firms will be effective in carrying the Party’s message to the global stage. Regardless of the messenger, that message is unlikely to be welcome anywhere in the global practice of law. Indeed, in most established legal systems worldwide, justice is (or should be) meted out objectively, without fear or favor, regardless of identity, money, power, privilege or political affiliation.

Chinese courts and the Chinese bar are not independent from the Communist Party machine. In short, politics trumps the law in China. Anyone in contact with the Chinese legal system would be wise to remember this.

Jim Zimmerman’s “China Law Deskbook” is considered the bible of Chinese law for foreign investors and legal counsel and China Briefing exclusively carries the China Law Deskbook monthly updates.

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