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"A Chinese court is not a court," says law expert
VANCOUVER - Clive Ansley, an expert on Chinese law and sometimes advisor to the Canada Supreme Court, and Beverley McLachlin, Chief Justice of Canada, gave a scathing review of the Chinese judicial system Friday, November 7th at SFU Harbour Centre in Vancouver, Canada.
While many contract lawyers are overjoyed with the rapid creation of business legislation, as one of only two foreign lawyers to have practiced as a litigator within the Chinese judicial system, Mr. Ansley described a dark trend in the underbelly of the Chinese courts.
“I spent 14 years dealing with the Chinese courts and I saw them progress from a situation where, although the judges had very little training, they took themselves seriously and they were trying to implement the rule of law and they were, for the most part, in many of the courts very impartial... and I have watched the system degenerate over a period of time...”
Mr. Clive, now with Arvay Finlay, an upscale law firm with offices in Vancouver and Victoria, titled his presentation “A Chinese Court is not a Court”. The conclusions he drew were based on his own experiences and, if true, may reveal a disturbing trend at the very core of the Chinese legal system.
He said “much of the Chinese legislation, the written legislation, is not bad, the problem is that it is very difficult to find a judge or court who has any interest in that law and often it’s hard to find any that have even read it... the Chinese government and the Chinese party has no intention whatsoever of implementing the rule of law... the rule of law is an anathema to the Chinese Communist Government because if you implement the rule of law, ...no individual and no organization and no party is above the law... that not only hasn’t happened in China but its not even contemplated.”
Mr. Ansley went on to describe a judicial system characterized by 100% criminal convictions, back room judgements, large scale, barely hidden bribery and a politically controlled judiciary that is more concerned with political interests than justice.
“15 years ago there was hope, we had judges who were largely untrained but they tended to be honest and they tended to be allowed to go their own way for a period of time and to actually write the judgements in the cases they heard and when somebody says the trend is positive I say if its positive why is it that we once could win major awards, big amounts of money on behalf of foreign clients and today its impossible.”
Mr. Ansley goes on to say member states of the European Union, which like China use a system of civil rather than common law, “repeatedly denounce China for its violations of its own constitution and its own laws.”
While this comes as no surprise to human rights watchers or Amnesty International, it would seam to be a surprise to Canadian Justice Department officials, or CIDA who have invested large sums of money in helping China update its judiciary, train judges, and operate a kind of judicial exchange program where Chinese judges come to Canada and Canadian judges go to China.
“They [CIDA] don't really want to hear that their programs are not bearing great fruit and that the system is not being reformed.”
When asked if he thought Canadian officials were naïve as to the situation in Chinese courts Mr. Ansley replied “I would be happier if I thought it was just naivety, but I think at that level they know perfectly well what’s going on and they don't care.”
Mr. Ansley recalled an article he had read in the Globe and Mail describing how Canadian officials were trying to let Beijing know that if Bill Clinton kept giving them a hard time about human rights, Canada was “open for business.”
When asked if Mr. Ansley feared any repercussion for his candid appraisal of the Chinese judicial system on his return to China he replied “I’m not going back. I wouldn’t have thought so.” However, friends high up in the Communist Party passed along a warning to Mr. Ansley, “Tell him not to come, its dangerous. If they want to get you you can just be hit while you’re crossing the street.”
Mr. Ansley continued, “I’m acting on that advice at this stage.”
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