Moving The Rule Of Law Discussion Forward In China

Friday, December 1, 2006 - 01:00

Editor: Would each of you gentlemen tell our readers something about your professional experience?

Silkenat: I coordinate the international business practice at Arent Fox. My practice is focused on cross-border transactions involving American companies and international institutions.

Hubbard: I chair the business litigation and employment law group at Nelson Mullins Riley & Scarborough, a firm of about 350 lawyers in 10 cities, primarily in the South.

Editor: In addition to handling a busy private practice, each of you has had a kind of parallel career with the American Bar Association. Would you tell us about the highlights of that experience?

Hubbard: My ABA experience began with the Young Lawyers' Division, of which I served as chair in 1987. I have since served as ABA state delegate for South Carolina and as president of the American Bar Endowment. I have also served on the ABA Board of Governors and currently serve on the board of the American Bar Foundation. In addition, I recently served as chair of the Rules and Calendar Committee of the ABA House of Delegates.

Silkenat: China provided my introduction to the ABA. In the mid-70s, when the ABA sent its first Delegation to China, I was included as a young lawyer. I was Chair of the Council of New York Law Associates at the time. I went on to chair the ABA's China Committee, founded the China Law Reporter and chaired the ABA's Section of International Law. I have also served on the ABA Board of Governors and its Executive Committee. Most recently I have served as chair of the New York Delegation in the ABA House of Delegates and as chair of the Fellows of the American Bar Foundation.

Editor: You recently served as Delegation co-leaders of a Fellows of the American Bar Foundation Rule of Law Delegation to the People's Republic of China. For starters, what was the origin of this initiative?

Silkenat: The Fellows of the American Bar Foundation, in addition to supporting the scholarly work of the Foundation, has decided to increase the global contacts of its members and to expand their knowledge of other legal systems. To that end, the Fellows sent a Delegation to Russia last year. This year it was China, and next year a Delegation will be sent to India. This is part of an ongoing outreach program.

Editor: What was the makeup of the Delegation?

Hubbard: We had a very diverse group that included labor and employment lawyers, transactional lawyers, litigators - both civil and criminal - and judges from a variety of jurisdictions, including a former Chief Justice of the Arizona Supreme Court. There were academic lawyers as well, and every section of the country was represented. What we had in common was a profound interest in legal issues and international affairs.

Editor: Did the trip have a specific mission?

Silkenat: The mission was to educate our members about legal issues in China and about the legal profession in China. It was also intended to expand our contacts in China so as to convey something about the legal profession in the U.S. and about how legal issues are handled here.

Editor: What was your itinerary?

Silkenat: We started the trip with briefings from some of the leading American press representatives in China, including a former China bureau chief for The Washington Post and the current Newsweek Beijing bureau chief. Our substantive meetings, which were held in Beijing, Shanghai and Guilin, were with American government officials and business leaders, Chinese lawyers and bar association leaders, Chinese government people, Chinese academics, and other components of the legal system in China. We tried to cover as many different bases as possible.

Editor: I gather one of the stops was the Chinese Ministry of Justice.

Silkenat: The Ministry of Justice exercises control over all aspects of the legal profession in China. Its reach is far more extensive than that of the U.S. Department of Justice. Some of this work is done in cooperation with the All China Lawyers Association, which, in some ways but not all, is the Chinese counterpart of American Bar Association.

Hubbard: During our meeting with the Ministry of Justice one member of our group read a report from The Wall Street Journal about a particular Chinese lawyer, Chen Guangcheng, who had been challenging some of the sterilization policies in the provinces. The Journal had reported that this particular lawyer had been arrested, tried without representation and sentenced to four years in prison. When asked whether the report was accurate, the Minister of Justice responded that the report was accurate. We were surprised at how direct and unapologetic the Minister was on this point. We saw in The New York Times recently that a Chinese appeals court had overruled the conviction and ordered a new trial.

Editor: You also stopped at China's National Judicial College. What is underway with respect to the education and training of judges?

Silkenat: The single most important issue that the Chinese legal system faces at the present time, I think, is the independence of the judiciary. There is certainly a recognition that a fair and impartial bench is necessary for a country with China's aspirations. Most of us believe that the Chinese are asking the right questions. Whether they will come up with the right answers on a consistent basis - given the political realities of today's China - remains to be seen.

Editor: You mentioned the All China Lawyers Association. How does it compare with the ABA?

Silkenat: Membership in the ACLA is mandatory for all Chinese lawyers, and historically it has been an instrumentality of the Chinese government. Accordingly, in some very substantial ways it is not comparable to the ABA. That said, the organization is moving toward many of the traditional bar association functions that characterize the ABA. This is a process that is underway but a long way from completion. I understand that the ACLA and the ABA have negotiated a working agreement that may accelerate this process, however.

Editor: What role is the United Nations Development Program playing with respect to rule of law projects and initiatives in China?

Silkenat: The UNDP supports a variety of rule of law projects in China, including the drafting and enactment of laws that would enhance judicial independence, efficient court administration and anti-bribery and corruption efforts.

Hubbard: The UNDP presented us with a document that summarized the status of a number of UN conventions and treaties - including human rights undertakings - in China. There is a clear recognition that China's status as a leading member of the international community entails acquiescence to many, if not all, of the international standards that the UN has promulgated.

Having said that, I am not sure that there is always unanimity of opinion and thought within the Chinese government. Like our own government, there are people who believe that markets should be open and courts impartial and independent; others believe that the government should exercise firm control over what happens in the country. I believe that there is a robust debate underway and that, whatever the result of that debate, China will not stay the same.

Editor: Our readers would be particularly interested in your impressions concerning the progress of the rule of law in China as a consequence of your visit.

Silkenat: There is still considerable progress that needs to be made on the independence and impartiality of the judiciary. There were headlines while we were in China about systemic judicial corruption in Southern China. This kind of publicity in itself is good.

Editor: What are your thoughts about the role of the profession, particularly in criminal defense cases.

Hubbard: The role that criminal defense lawyers play in the legal system is pretty minimal today. There are many cases where defendants are tried and convicted without the benefit of counsel - there are, after all, only about 130,000 lawyers for a country of 1.3 billion people - and it is simply not possible to have a lawyer for every criminal case, even with the best of intentions. The plain-spoken acknowledgement on the part of the Minister of Justice is a clear reminder of that fact.

Silkenat: On the other hand, we heard from Chinese legal aid organizations about this issue and the need for change. The mere fact that this topic is being aired reflects a desire to do the right thing.

Let me add that China is a very complicated country. I mentioned the newspaper reports about investigations into judicial and police corruption - obviously a very good thing - but we also learned that investigations are often a political tool, a means whereby one faction discredits its political enemies. The kinds of investigation in China that journalists write about cut both ways.

Editor: Are professional codes of conduct and ethics in place?

Silkenat: The development of such standards is tied to the degree of independence from government that lawyers enjoy. Progress is being made, but the idea of independent lawyers is something that has emerged only in recent years. Prior to that, lawyers were rightly perceived as agents of the government, whether active or inactive, and irrespective of whom they represented.

Editor: What role are the law schools playing in contributing idealistic young people to the profession?

Hubbard: I visited two law schools in China, and I believe that their graduates, if permitted, will play a major role in legal reform in China. I was most impressed by their English language skills, their knowledge of Western culture and world affairs, and their informed and objective assessment of the U.S. They are clearly children of the world, and not just of China.

Silkenat: One of the first questions we were asked in Guilin was whether the depiction of crime and criminal law in American movies was accurate, which prompted an extensive and by no means unanimous response from the American side. They were also interested to know whether America's "No Child Left Behind" initiative was working. We were most impressed by the caliber of the students we met in China.

Editor: Is there anything either of you would like to add?

Silkenat: Making contact with our Chinese counterparts was extremely rewarding, and I believe it will serve as a foundation for the sharing of experiences in the future. We are part of a global profession. It was also very rewarding to be able to share this Chinese experience with a very diverse and talented group of U.S. lawyers. That enabled each of us to see China from a variety of American perspectives.

Hubbard: I believe the entire Delegation came away from China in a very thoughtful frame of mind. China is a country of contrasts. Shanghai is an enormous construction site, and some of the office buildings in Pudong are architectural wonders. They stand next to tenements that have not changed in decades, if not centuries. China has made great progress in recent years. It is not clear how the benefits of that progress have been shared among the Chinese people.

Please email the interviewees at william.hubbard@nelsonmullins.com or silkenat.james@arentfox.com with questions about this interview.