So, say you have a government that doesn’t allow any direct political competition but is still in need of a legal system in order to develop a modern, globalized economy. The country’s citizens, having endured many years of arbitrary authority, centuries, in fact, see themselves as having certain rights, and many begin to use this legal system in order to settle disputes and stand up for their rights when they are being abused. Even political protestors have rights according to the country’s constitution, and they too use the developing legal system to defend themselves. This puts the government in somewhat of a quandry. How can they build a rule of law and yet maintain their monopoly on political power?
Well, here’s one way – require defense lawyers to cooperate with the government. A Human Rights Watch report released earlier this week charges that:
the rule of law in China has been sharply curbed by regulations approved in the spring by the All-China Lawyers Assn., which is in effect the nation’s bar association.
The regulations require that lawyers representing political protesters be “helpful to the government,” share otherwise-confidential information about their clients with prosecutors, and be of “good political” quality, generally a euphemism for dedication to the ruling Communist Party.
The new rules are “restricting access to justice, and access to justice is really a make-or-break issue for China today,” said Nicholas Bequelin, the China researcher for Human Rights Watch. “You’re shutting down the pressure release valve that’s very badly needed in a one-party system.”
Bequelin said the so-called Guiding Opinion on Lawyers Handling Mass Cases was approved by the lawyers association March 20 but was only officially published a month later and was all but ignored by the Chinese press…
As described by Human Rights Watch, the Guiding Opinion makes it clear that lawyers’ first responsibility is to society, not their clients. “During these important times,” the rules say, “correct handling of cases of a mass nature is essential to the successful construction of a socialist harmonious society.”
“These regulations,” Bequelin said, “spell out rules that are simply incompatible with carrying out your professional duties as a lawyer.” He said they negated “the principle that is consecrated even in Chinese law, that the lawyer’s duty is to his client.”
Oh, and one more thing:
The rules also warn lawyers not to “stir up the news,” and to take special care with international media.
I know! Talk about the Olympics!
1
By Raj
You see. People so often refuse to accept that rule of law, etc isn’t getting better in China. This goes to show where it counts the country is actually going backwards.
December 16, 2006 @ 10:05 pm | Comment
2
By OtherLisa
I don’t think it’s straightforward – I think there are steps forward, steps backwards and a lot of steps sideways.
December 17, 2006 @ 4:09 am | Comment
3
By pigsun
Lawyer’s first responsibility is to the society. What’s wrong with this sentence? Is this not true in every country? If you know someone has murdered someone, but if you are paid 1 million dollars, you would try to prevent him from going to prison? This is too disgusting.
Maybe this is the nature of the “free market” of the USA. In the USA, justice can be traded with money between a lawyer and his murderer-client.
December 17, 2006 @ 6:55 am | Comment
4
By OtherLisa
I wouldn’t, personally, Pigsun, but the cornerstone of the American legal system is that everyone has the right to legal representation working for his/her best interests. While there are many things about the American legal system that do not work at all well (the more money you have, the better your chance at a favorable result, the capital punishment system in general), the ideas that people are innocent until proven guilty and are entitled to legal representation, to see the evidence against them, and so on, are very good ones. This is why I am so appalled by the abuse of justice at Guantanamo. It goes against everything I think is worthwhile in the American justice system.
But this post is about the Chinese justice system. Though I don’t mind bringing up relevant examples from the American side, it’s tiresome to get this specious “well, your system sucks!” response to every criticism.
Why not discuss the Chinese justice system on its own merits and deficits? I and others have applauded such improvements as review of death penalty cases by the Supreme court, so it’s not a black and white, one sided situation.
December 17, 2006 @ 7:11 am | Comment
5
By OtherLisa
I should add to this, is it helping a “harmonious society” when local bosses don’t want citizens bringing examples of their corruption in front of a judge? It all depends on who holds the power, and just because you are powerful doesn’t mean that you are right. With all of the examples of corruption at the provincial levels, I’m surprised you’re so trusting that the government will always be thinking of societal harmony first.
Everyone deserves an advocate to represent his or her interests first.
December 17, 2006 @ 7:22 am | Comment
6
By Jeremiah
Via China Law Blog,
Angry Chinese Blogger has a great post on a recent case from Sichuan province that is a chilling reminder of the state of China’s criminal court system, especially at the local level.
read it here
Sorry, I’m not good at putting links in the comments.
December 17, 2006 @ 8:33 am | Comment
7
By Jerome
Good post Lisa,
I think it brings out how the central struggle is always between individual rights and societies rights.
Involved in this is also who defines what society is and what Pigsun seems to miss.
i.e. for certain people, the definition of society is a pyramid where I am at the top and all you humble people below must realize that what I tell you is for your own good. Lawyers must help me maintain this pyramid.
Jerome
December 17, 2006 @ 8:51 am | Comment
8
By OtherLisa
Jeremiah, I’ll fix the link for you. drop me a line and i’ll explain how to do it. redandexpert at that yahoo place.
Thanks Jerome. i’d like to respond to your thoughtful comment but it’s late here and i’ve got to sleep…more later.
December 17, 2006 @ 4:51 pm | Comment
9
By Nikeroo
From my own frustrations with lawyers in China I have to agree heartily with this article. It’s really scary cause it means that the courts are not watchdogs for society or the government….no “separation of powers” or “independant media” like we value in Western society. It has horrible consequences…
December 17, 2006 @ 5:27 pm | Comment
10
By Sonagi
Lawyer’s first responsibility is to the society.
A lawyer fulfills his responsibility to society by meeting the accused’s constitutional right to legal representation. It is not a lawyer’s place to determine the guilt of the accused. That is the job of the jury.
Maybe this is the nature of the “free market” of the USA. In the USA, justice can be traded with money between a lawyer and his murderer-client.
No, a verdict of “not guilty” is not guaranteed even with the best lawyers, who must convince a jury of twelve people. I’m glad that accused criminals in my country are presumed innocent until proven guilty and have the right to defend themselves in front of a judge and jury.
December 17, 2006 @ 9:41 pm | Comment
11
By Peter
Lawyer’s first responsibility is to the society. What’s wrong with this sentence? Is this not true in every country? If you know someone has murdered someone, but if you are paid 1 million dollars, you would try to prevent him from going to prison? This is too disgusting.
I doubt the leaders of the CCP and their running dogs such as Pigsun will ever believe it, but in the West a lawyer’s responsibility is also to help maintain social harmony. They do this by helping to ensure that justice is served for their client – ie that their guilt or innocense is determined in a fair trial according to rules, rather than an arbitrary fashion. Of course it doesn’t work perfectly every time, but the expectation is there that the legal system is designed to be fair and impartial, and that where it is not, it can and will be corrected. This is one reason why Western societies are, by and large, stable societies. Contrast that with China, where there is no such expectation.
It’s strange that for all their prating about harmony and social stability, the CCP don’t seem to realise that the basis of stable societies is justice. No society can ever be stable when the ruling class is seen by everybody to be above the law.
December 18, 2006 @ 5:11 am | Comment
12
By shulan
When I read stories like the one by ACB, Jeremiah linked to I wonder if the Chinese authorities shouldn’t have a look in their history books and study the judicial system of their ancestors. At one time in history (I think it was the Tang-Dynasty) there existed a rule after which a judge would be punished with the same punishment to which he had convicted the defendant to, if he made a wrongful conviction. I am sure the number of death sentences would drop distinctly.
December 18, 2006 @ 5:33 pm | Comment
13
By Jeremiah
Shulan,
Actually that law existed into the Qing. The rule was that magistrates could use torture to exact a confession but that the magistrate would be liable in the event of a prisoner’s death.
It should also be noted that during the Qing, all capital cases (in theory) had to be sent to Beijing for review by the Board of Punishments and, ultimately, approved by the emperor.
Now, it didn’t always work out that way in practice, but the procedure was in place and it’s interesting that a new law will go on the books January, 2007 requiring all death penalty cases be approved in Beijing.
As CLB blogged recently, hopefully this new law too will lower the number of executions.
December 18, 2006 @ 8:02 pm | Comment
14
By shulan
I see, yes this new law will hopefully have a positive effect. Unfortunately it won’t prvent cases like the one of Gao Qinrong:
http://tinyurl.com/vq5lh
December 18, 2006 @ 9:06 pm | Comment
15
By The Iron Buddha
“Lawyer’s first responsibility is to the society.”
Wrong. A lawyer’s first responsibility is to the law, not a random opinion of what he or his government thinks might result in a “harmonious society.”
December 19, 2006 @ 5:49 pm | Comment