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• OPINION
• NOVEMBER 30, 2008, 1:36 P.M. ET

Socialist Rule of Law

China's legal reforms have stalled.

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By LESLIE HOOK | From today's Wall Street Journal Asia

China soon will celebrate the 30th anniversary of its economic reforms. The progress, in terms of standards of living and GDP growth, has been huge. But the country still lacks a fundamental institution of a true market economy: the rule of law.

The current legal system grew out of the reforms of 1978, and like the economy, it has improved greatly in the past three decades, especially in the development of a commercial code. But in a Communist system there is no law apart from the state, and while China's leaders often pay lip service to the rule of law, their actions speak louder than words.

President Hu Jintao's catchword is "harmony," and it's only now, six years into his rule, becoming apparent what that means for the rule of law. Take the words of Wang Shengjun, a career bureaucrat with no formal law degree, who was named head of the Supreme Court in March. Mr. Wang has promulgated Mr. Hu's theory of the "Three Supremes" to guide the work of the legal system. This refers to the Communist Party, the people's interest, and the constitution and laws -- in that order. During a recent visit to a court in Beijing's Fengtai district, he said the "demand of the people" should "become the basic principle of people's court routine."

Nowhere is this attitude clearer than in the local bar associations. In free countries, lawyers organize via independent bar associations that govern ethics and serve as watchdogs on government abuses of the system. Not so in China. All practicing lawyers must register with and pay dues to their local lawyers' association, which reports to the Ministry of Justice, which tacitly approves its leaders. These associations aren't there to help lawyers or represent them to the Ministry; rather, their purpose is to control the lawyers -- sometimes even telling them whom they can, and can't, represent, according to Chinese legal scholars. Many lawyers resent paying for this "service."

In Beijing, a few lawyers decided to do something about it. In August they wrote a letter to the Beijing Lawyers' Association asking for the right to elect the group's leaders, vote on a new set of regulations to govern the body, and vote on lower annual fees. "Democracy is not a far-off ideal," the letter concluded. Thirty-five attorneys signed the original petition, and two months later it had more than 80 signatures.

In response, the association issued an open letter announcing it was illegal to use "text messages, the Web or other media to privately promote and disseminate the concept of direct elections, express controversial opinions, thereby spreading rumors within the Beijing Bar Association, [and] confuse and poison people's minds."

One of the attorneys spearheading the reform effort, Cheng Hai, explained in a phone interview why it is so important for lawyers to be able to vote for the leaders of their association. Because lawyers cannot vote, he says, the association does not "protect [their] interests" or protect them against abuses. Sometimes, the association even discourages them from doing their jobs: Mr. Cheng was one of 18 lawyers who wrote an open letter offering to represent Tibetans after the protests in March. "The president of the lawyers' association cursed us," he says. Separately, two of his co-signers lost their law licenses a few weeks later.

Nor do bar associations necessarily speak up when members are prevented from representing their clients adequately, particularly in politically sensitive cases. Courts sometimes limit lawyers' ability to meet with clients, access court documents, or even attend their clients' hearings. Mr. Cheng, for example, was denied the right to meet with a client, Yang Jia, in a nationally famous murder case in Shanghai in September. Mr. Cheng filed a lawsuit against the Public Security Bureau on the grounds that preventing him and a colleague from meeting with the defendant was illegal. His lawsuit was ignored by the courts.

The flaws of the legal system also impact economic activities. Jude Shao, an American businessman, was released from a Chinese jail this year after a 10-year imprisonment. He had been convicted of tax evasion in an opaque trial where he and his lawyer were unable to meet until one week before the hearing took place, according to news reports. Justice is likewise denied to the families of infants who were poisoned by infant formula laced with melamine: Chinese courts have not yet accepted a single class-action lawsuit.

As China's economy slows and unemployment rises, the ranks of the disenfranchised are growing. Most incidents of social unrest in China stem from injustices that courts are unwilling to address, usually involving sensitive issues such as land seizures, corruption, or a firm's failure to pay wages. The government should be honoring -- rather than punishing -- the lawyers who are willing to take these cases on.

Mr. Cheng appears to have paid a price for speaking out. In October he was fired by his law firm, along with Li Subin, a colleague who also had signed the election petition. The Beijing Lawyers' Association has not come to their defense.

Ms. Hook is an editorial writer for The Wall Street Journal Asia.