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China’s Judicial Independence and Modern Art, and LSUC Becomes LSO

China is making slow but steady progress toward what western countries consider to be judicial independence (see authorities listed below). I asked a judge in Beijing (my wife assisting as interpreter) his views of the judiciary’s state of independence. He said that they have considerable independence but some cases involve other authorities.

Paralleling that, but apparently at a faster pace is the liberalization as to what is permitted in modern art. A few years ago we went to the 798 Photo Gallery of modern art in Beijing’s fashionable 798 Art Zone, located in Dashanzi, Chaoyang District of Beijing, which houses a thriving artistic community. Dashanzi is now a center of Beijing’s “BoBo” (bourgeois-bohemian) community. I was amazed at what I saw there. The following two photos show some of what amazed me (my wife and I posing in these photos to show size and scale).

This is Chairman Mao (Mao Zedong, 1893-1976), presented as capable of seeing himself in a more relaxed, humorous manner, rather than as the very formal and authoritative founder of the People’s Republic of China—its former great leader. Could an American major gallery of modern art show the same degree of flexibility and tolerance by presenting George Washington and President Lincoln in a comparable manner? Are they not always portrayed in a most formal manner as highly honored and deeply respected figures? And it is that formal manner in which Chairman Mao appears in that large, imposing picture-poster of him that dominates Tiananmen Square in the centre of Beijing. To compare, what degree of leeway would be “in poor taste,” in the portrayal of John and Robert Kennedy? (In sharp contrast, as a work of art, modern or otherwise, President Trump is, and would be, “something else.”)

In Canada, we have a more modest and relaxed view of ourselves and our leaders. For example, for the composition of Canada’s Parliament,[1] in addition to the House of Commons, the Senate was added as a “chamber of sober second thought,” because, it is said, Canada’s founding father and first prime minister, John A. Macdonald, was frequently not sober. (However, in fact he deserves, in spite of some bigotry, a praising analysis.)[2] And whereas Americans and America prefer to be portrayed as Superman, we in Canada prefer to be his “mild-mannered and unassuming” self and alter ego, Clark Kent. And whereas the American social mantra is “the melting pot,” the Canadian counterpart is the “salad bowl,” which is much less demanding of its constituent elements and ethnic components.

As an example acknowledging such “ethnic components,” and also a much belated recognition that Canada is no longer a group of colonies, as of January 1, 2018, The Law Society of Upper Canada (LSUC) is to be known as, “The Law Society of Ontario.” “Upper Canada” being Ontario’s designation when it was a British colony before July 1, 1867, because it was and still is, further up the St. Lawrence River than Lower Canada, now the province of Québec. That re-naming finally puts behind it, LSUC’s excessive reverence for its colonial past. It is a response to such facts as that, half of the people living in the Greater Toronto Area (population, 6.4 million) were not born in Canada. For them “Upper Canada” might well mean that LSUC was a law society for lawyers whose law offices were up above the 60th parallel of north latitude where Canada’s three territories and Arctic Ocean coastline are.

For formal “heritage” documentation of LSUC’s history, here is a photo I took of an impressive sign on a raised stand on the main street of the beautiful town of Niagara-on-the-Lake, Ontario,[3] declaring the formation of LSUC there on July 17, 1797. For scale (size & height), in the bottom righthand corner can be seen the back wheel and bottom edge of an automobile and a bit of the roadway beneath it:

Within a decade, six of those founding ten practitioners were dead. Half of them were under 30; the youngest was only 19. There were only 15 lawyers in the whole colony.[4] Such was life. In 1797 the French Revolution was still raging (since 1789), as was the British trans-Atlantic slave trade until the 1807 Act that abolished the slave trade (but not slavery).

This next photo of a large wall mural at that same Beijing gallery of modern art, is either a significant and welcome example of the liberation of art, or one to be denigrated as working against the interests and dignity of women. Or could the Canadian Charter of Rights and Freedoms’ “freedom of expression” provisions (s. 2(b)), enable one to argue that it can be both? If so, in Canada the statutory defence of “serving the public good” (s. 163(3)), would provide a successful defence against any criminal charge as to corrupting morals—section 163 of the Criminal Code.[5]

Or could the intended meaning and message of this mural be that the women depicted are crying over the sexual defilement that has been forced upon them, as is corroborated by the abundant tears to be seen dripping from them? That would require a very different application of laws. Such uncertainty as to the proper interpretation would in itself undermine and prevent “proof beyond a reasonable doubt” being achieved (the burden of proof required for criminal convictions). ‘Tis the artistry of the vague and subtle in blunt and forceful presentation.

Also on display were pictures of Bobby Kennedy and Mohammad Ali, and a small bronze sculpture of a curvaceous young lady wearing high heels, swinging a golf club, but dressed in an army uniform with the pant legs rolled up to the top of her thighs.

A few days later, at dinner in Beijing, I asked a young corporate-commercial lawyer about these surprisingly liberal examples of modern art in China. Particularly so the portrayal of Chairman Mao, it being not what a westerner expects to see in China’s capital city. He shrugged nonchalantly and said, “times change.”

Here’s a third photo of a mural in that 798 Beijing modern art gallery. But what meaning or message is to be taken from it?

Beijing is a fascinating city, officially 20 million, but some say it is closer to 30 million people because of the uncounted people who come to Beijing for the jobs. I’ve been there several times to visit my wife’s family. My favorite places are in the hutongs because they remind me of the Kensington Market area of Toronto in the 1940’s during my first ten years—its history is that of successive waves of immigrants.[6] It was populated then by pre-WWI Jewish refugees (and their children and grandchildren) who had been forced out from places like the last scene of the movie production of Fiddler on the Roof. Kensington was still known as the Jewish market when I was a boy. Before that, Irish immigrants occupied Kensington. Many of them were descendants of those who had escaped the massive death and disease of the worst of the Irish Potato Famine (1845-51; “Ireland’s Holocaust-a genocide question” some analysts say).[7] Now, Kensington is a tourist attraction of a very different nature and population. My childhood narrow house on Augusta Avenue now has a little café on its second floor.

The hutongs are described as possessing an 800-year chronicle of Beijing. They are a maze of narrow streets, laneways, and gate towers, and their markets provide the lowest prices in Beijing. And so parts of them are a tourist attraction. But they are rapidly being replaced by impressive office towers and apartment complexes (“apartment communities” they are called).

A city that size has a lot of everything. It is a city of apartment buildings, old and ultra modern. Houses exist only on the outer fringes of the city—out beyond the Fourth Ring Road. The Ring Roads circumnavigate the city as do concentric circles. The resulting concentrated density of the population produces crowds of people everywhere, traversing wide but crowded roads, which makes for aggressive driving and parking that is always a daunting challenge. As a result it has an excellent, very low cost, inexpensive public transportation system to entice people out of their cars.

As a beginning for studying China’s justice system and rule of law, see these texts:

– Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge University Press, 2005);

– Pitman B. Potter, China’s Legal System (Polity Press, 2013);

– Randall Peerenboom editor, Judicial Independence in China (Cambridge University Press, 2010);

– Neil J. Diamant, Stanley B. Libman, and Kevin J. O’Brien eds., Engaging The Law in China (Stanford University Press, 2005);

– Stanley B. Lubman, Bird in a Cage, Legal Reform in China After Mao (Stanford University Press, 1999); and,

– John Bennett Garrick, and Yan Chang, eds., China’s Socialist Rule of Law Reforms Under Xi Jinping (Routledge, December 22, 2017; on Dec. 27th it was available on pre-order from Amazon.ca).

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[1] Canada and its Parliament have been in existence since four of the North American British colonies established Canada’s Confederation Day, (now “Canada Day”) as, July 1, 1867. The four original provinces with which Canada began its existence were, Ontario, Québec, New Brunswick, and Nova Scotia. Manitoba joined in 1970; British Columbia in 1871; Prince Edward Island in 1873; Alberta and Saskatchewan were established in 1905; and Newfoundland joined in 1949. The territories of Yukon and the Northwest Territories were acquired in 1869 and 1880. And the third territory, Nunavut, was carved out of the Northwest Territories in 1999; all to make the country that has the second largest land mass.

[2] See these hyperlinked sites: (1) “In defence of Sir John A. Macdonald: 15 things to know about Canada’s first prime minister; (2) “What did Macdonald do for Canada?; and, (3) “John A. Macdonald” (a detailed and full Wikipedia biography). And there are many published books about him. As to bigotry, a National Post article of January 24, 2015, states: “Criticisms of Macdonald generally centre on his policies concerning non-white Canadians. In short, he worked to keep out the Chinese, smashed Métis rebellions and set Canadian First Nations on track to decades of poverty and isolation.” For an anti-Macdonald book, see: James Daschuk, Clearing the Plains: Disease, Politics of Starvation, and Loss of Aboriginal Life (2014). A relevant government publication is: Final Report of the Truth and Reconciliation Commission of Canada, A Summary (2015), dealing with previous government policy and practice to end the existence of distinct societies of Aboriginal peoples.

[3] Niagara-on-the-Lake, Ontario, is a tourist attraction equal, in my opinion, to that of the nearby Niagara Falls.

[4] For a detailed description and analysis of LSUC’s first 200 years, see: Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (University of Toronto Press, 1997).

[5] The Charter applies only to government actions, but that includes all laws and regulations and actions by the police and other government officials: RWDSU v. Dolphin Delivery Ltd. 1986 CanLII 5 (SCC), [1986] 2 SCR 573; McKinney v. University of .Guelph 1990 CanLII 60 (SCC), [1990] 3 SCR 229.

[6] Here is a very interesting picture-book history (with commentary) of Kensington Market: Jean Cochrane & Vincenzo Pietropaolo, Kensington (Boston Mills Press, 2000; 160 pages).

[7] See also the BBC History site: “The Irish Famine”; and, James Donnelly, The Great Irish Potato Famine (Sutton Publishing, 2002).

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