July 23, 2008
Rewards and risks of Chinese legal career
By Jamil Anderlini in Beijing
Tao Jingzhou and Teng Biao represent the yin and yang of China’s justice system. Both graduated from the prestigious Peking University law school, but they have followed very different career paths and been rewarded in very different ways.
Mr Tao works out of the plush Beijing office of the American law firm Jones Day, where he is a partner. In 1977 he belonged to the first batch of Chinese law students in 20 years. “We didn’t have any law books,” he says, “because there were hardly any laws in China.”
Mr Teng’s career, by contrast, has been scraped out of the dark cracks that pervade the criminal justice system, where lawyers are often held responsible for their clients’ political crimes. A 35-year-old from a peasant background, Mr Teng graduated in 2002 with a PhD from Peking University and has since become famous as a defender of the disenfranchised. He was in effect disbarred in June for organising a group of lawyers offering to defend Tibetan protesters arrested in the aftermath of March riots in Lhasa.
Were it not for his principled defence of the downtrodden, Mr Teng would long ago have joined the ranks of China’s burgeoning middle classes, who are demanding a legal system that adequately protects their property and individual rights.
That legal system has undergone vast changes. The 82 pioneer law students in Mr Tao’s class 30 years ago compare with 300,000 in more than 600 law schools today.
But it remains ill-equipped to handle the increasing demands placed on it. In the last five years, Chinese courts ruled on nearly 32m cases, more than two-thirds of which were civil or economic cases brought by companies or individuals.
The realities of living in a totalitarian state also lend uncertainty to the legal system. Opportunities abound for powerful individuals to intervene, says He Weifeng, an outspoken legal professor at Peking University.
“Actually, there is no real legal system in the western sense in China,” he declares.
Enforcement of existing legislation is often lax – something that becomes apparent when you compare China’s excellent environmental laws with the reality outside the window or read the country’s constitution, which guarantees all citizens freedom of religion, freedom of speech and freedom of political association.
In criminal cases and high-profile civil cases, political interference is rife, while in smaller cases bribing judges and prosecutors is the norm.
“The biggest problem with China’s legal system is that politics and the law are not separate,” says Mr Teng. “An independent judiciary is not possible under the current system because the law is regarded as a tool to serve the party.”
Every court includes a special Communist party committee with the power to overrule it in “political” cases. In smaller towns it is often headed by the local police chief, in effect making the court a subsidiary of the police department.
Mr Tao argues those problems are mild compared with the aftermath of the Cultural Revolution, when he began his studies. When he landed at the new Peking University law school its very existence was a “state secret” and only children with suitably “red” backgrounds could attend. Most of his professors were just back from the countryside or labour camps, where they were sent during Mao Zedong’s brutal anti-rightist campaign that virtually ended the legal profession in China in the late 1950s.
After studying and practising law in France for many years, Mr Tao returned in the early 1990s to what is now a thriving practice working for international companies seeking to invest in China.
Since his return the legal profession has undergone another revolution. In the 1980s most judges were former civil servants or military officers who had never studied the law. By 2005, the last time the government released figures, just over half of China’s judges held bachelor degrees or above, up from just 7 per cent a decade earlier.
Mr Teng’s path remains very different. From his tiny office on the outskirts of Beijing, he barely makes a living defending China’s untouchables – Falun Gong practitioners, dissidents and organisers of non-state-approved Christian churches. The government requires lawyers to renew their practice licences annually and often refuses to renew them for “troublemakers” such as Mr Teng.
He is not just risking his career. During the March annual meeting of China’s rubber-stamp parliament he was grabbed off the street, bundled into an unmarked car and hooded before being driven to an unknown location. There he was interrogated and threatened for two days before being returned to town. His assailants never identified themselves but Mr Teng suspects they were state security agents, as they repeatedly threatened to put him in prison if he continued to write articles criticising the government and legal system.