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Legal cooperation across the Himalayas

Pallavi Aiyar

China is looking to its big southern neighbour for learning in the legal area.

AS THE Sino-Indian friendship year enters the halfway stage, the latest example of cooperation across the Himalayas is in the legal field. A week after the Defence Ministries of the two countries signed their first ever MoU in the military sphere, a delegation of 12 lawyers from the Bar Association of India (BAI) is in Beijing to discuss bilateral cooperation between the legal communities of the two neighbours.

The head of the delegation and BAI vice-president, K.K. Venugopal, explains: "Both China and India face common issues resulting from globalisation to do with international trade and arbitration. Unless our legal systems can rise to Western standards in these matters, we will be at a disadvantage. So India and China have a common cause to ensure that our laws develop harmoniously to meet these challenges."

Sophisticated system

"India has quite a sophisticated legal system with many creative features and there is a lot we can learn from your country," adds Yin Baohu, deputy director-general of the China Law Society, on whose invitation the BAI delegation is in Beijing.

China is in fact currently embarking on a series of major legal reforms intended to promote the "rule of law" which is seen as a necessary corollary to the country's economic reforms and projection of itself as a modern, progressive nation. Multi-party democracy remains firmly off the agenda. In its stead is the idea that the country is to be ruled according to law, rather than bureaucratic fiat.

This new emphasis on the rule of law follows the recognition of the value of an impartial judicial system in providing an investor-friendly environment, coupled with the need to develop mechanisms to resolve social tensions created by the churnings of an emerging market economy.

Moreover, increased prosperity and looser socio-economic controls have brought in their wake a growing sense of entitlement in citizens, that has placed demands on the Chinese Communist Party (CCP) for better governance and further reform.

As a result, the CCP has resorted to the granting of a series of tactical legal rights, such as the right to sue government agencies on certain issues, to private property, religious freedom and so on, as a substitute to political reform.

Critics however say that despite the publicity given to the concept by party leaders, "rule of law" remains an empty phrase. The majority of Chinese judges are members of the CCP and appointed on the basis of recommendations by the party. Judges with professional training or academic backgrounds are scarce. Only about one-fifth of all judges in China have law degrees. The first time a lawyer was appointed as Chief Justice of the Supreme Court of China was in 2000.

A new regulation now requires judges to have a minimum qualification of a university degree and at least some legal experience. Moreover, optimists say that even if the current legal system lacks real bite, the rhetorical emphasis on law and the flurry of new legislations that are being consequently drafted will incrementally lead to a rise in the legal consciousness of citizens, that will in turn push the CCP to concede more independence to the judiciary.

Indeed, already China's citizens are going to court in record numbers. In the last year alone, about 4.4 million civil cases were filed, more than double the total a decade ago. Experts say that of the over 100,000 cases a year filed by citizens attempting to sue the government under a 1990 administrative litigation law, plaintiffs now win 25-30 per cent of the time.

Nonetheless, attempts to create rule of law in the absence of an independent judiciary remains akin to squaring a circle. The institutional curbs on political power and judicial independence required by the rule of law stand in contradiction to the CCP's professed determination to maintain a monopoly on power.

According to Li Gui Lian, Law Professor at Peking University, China is thus in fact finessing a system of rule by law, wherein the law is seen in an instrumental sense, creating the consistent "rules of the game" needed for a modern market economy.

Both the United States and the European Union have had cooperation programmes in China aimed at the promotion of the rule of law for the last several years. The attempt by the BAI and the China Law Society is, however, the first time that China is looking to a developing country for learning in the legal area. For the moment this bilateral cooperation is focussing on international trade law and arbitration rather than on judicial procedures.

The 12-member BAI delegation is currently participating in a two-day conference titled "Sino-Indian International Conference on Legal Cooperation and Development" the focus of which is on trade remedies, WTO dispute settlement mechanisms, foreign investments, regulation of the financial sector, and so on.

There are plans to institutionalise the dialogue and the BAI has invited the China Law Society to a follow-up conference in India in December.

Recent years have seen China emerge as major role-model for India in the economic field with Prime Minister Manmohan Singh even promising to transform Mumbai into Shanghai. In the legal sphere however, it is China that has much to learn from its southern neighbour, a fact that is beginning to gain recognition in Beijing.

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