Rolling Over The Rule Of Law

Screenshot of website of Essex Court Chambers, London

OUR MAN AMONG m’learned friends in London draws our attention to a Financial Times report on the chilling effect resulting from China’s retaliatory sanctions on the United Kingdom for that country’s comments about Xinjiang. Our man is concerned because of nascent signs of self-censorship among lawyers wary of antagonising Beijing and how it suggests a broadening of the push to co-opt and coerce the commercial world into muting international criticism of Beijing’s policies in Xinjiang and, indeed, Hong Kong.

The nub of the story is that last month China sanctioned several UK members of parliament, academics and individuals for ‘gross interference’ for their comments about Xinjiang. The list included Essex Court chambers, a group of some 90 barristers, four of whose number had provided a legal opinion in January for the Global Acton Legal Network, a non-profit working with the World Uyghur Congress and Uyghur Human Rights Project.

The sanctions bar those named from doing business with Chinese individuals or entities, ban them and their families from entering China, Macau and Hong Kong and freeze their China-based assets.

Essex Court barristers specialise in commercial and financial litigation, arbitration and public international law. Chambers are a particularly English institution. They are not a law firm as it would be recognised elsewhere. They are the offices of barristers who are self-employed providers of expert legal opinion and advocacy in court under the English legal system. They are instructed case-by-case by solicitors, the other qualified lawyers in the English system, who deal directly with clients.

These distinctions may be lost in China. After the sanctions were announced, Essex Court removed from its website a news item about the four barristers who had written the opinion about Xinjiang and pointed out that as independent barristers, no other member of the chambers would have been involved in writing it. The China Daily headlined its report on that ‘Barristers in retreat on lies over Uygurs’ and reiterated the charge that the opinion had used ‘the same tone as that of some Western politicians and media outlets’.

Our man says solicitors will now be wary about instructing Essex Court or any set of chambers whose barristers take on work for groups or individuals critical of China. Arbitration work in China via Hong Kong’s legal system has been a lucrative source of business for UK lawyers. Similar work in Singapore and the tax haven and brass nameplate islands of the Caribbean will now be at risk.

The General Council of the Bar, the professional association for barristers in England and Wales, has called the sanctions ‘an attack on the rule of law’. London lawyers are now wondering who might be next and if or when, in that incremental way of pushing back Beijing now employs, the tactic might be employed against the big City of London and international law firms.

The Financial Times quotes an unidentified member of Essex Court saying that theirs is ‘the first set of chambers to be made subject to these sanctions . . . but it may well not be the last’. Our man adds that if Beijing can cower UK and US law firms, even just by making them shy off taking on cases and clients that would displease China, the notion of the independence of the rule of law in Wester legal systems would be weakened. It would be a significant victory in the fight to undermine Western values.

Addendum: Chen Yixin, Secretary-General of the Central Political and Legal Affairs Committee, gave a speech at a recent study session on Xi Jinping Thought on Rule of Law. 

Among selected passages from the speech:

Marxism believes that politics determines the rule of law, and the rule of law serves politics. The practice of the rule of law at home and abroad shows that there is politics in the rule of law, there is no rule of law divorced from politics, and there is no rule of law that transcends politics.

Equally as blunt:

From China’s national conditions and reality, we will take the road of rule of law that suits us, never copy the models and practices of other countries, and never take the path of the so-called ‘constitutional government’, ‘separation of powers’ and ‘judicial independence’ of the West.

And:

As China moves closer to the center of the world stage, we must accelerate the strategic layout of foreign-related rule of law work, coordinate domestic and international governance, and better safeguard national sovereignty, security and development interests.

No one can say that Beijing is hiding its intention.

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