Wednesday, October 31, 2007

China's Law on Lawyers

Lauren Hilgers

China’s Law on Lawyers, amended earlier this week, only came into effect in 1997, the same year China introduced ‘rule of law’ into its constitution.

The original law was passed to standardize the process that new lawyers in China went through and to recognize them as entities outside of the state apparatus. A little more than ten years before that, it didn’t really matter—there were no lawyers. Or, at least very few with proper training; the 20-year educational hiatus during the Cultural Revolution left many professions without professionals. (Today, with 130,000 lawyers and 13,000 law firms, according to the Ministry of Justice, China has come a long way)

The recent amendments to the law purport to increase the freedoms of lawyers and to improve the process of providing criminal defense. Lawyers can now set up single practitioner firms, a boon to foreign firms seeking local assistance and advice, and the amendment strengthens requirements for legal ethics and law firm governance, increasing fines and ironing out details.

One of the more interesting parts of the amendment addresses the attorney-client relationship in criminal cases. Without foreign investment or WTO requirements to help it along, criminal law has been slow in adopting reforms. Civil lawyers in China can make good money. Criminal lawyers, in contrast, have it hard. Often denied access to clients, criminal cases can be frustrating and sometimes dangerous for the lawyers that take them on.

The new amendment to the Law on Lawyers gives defense lawyers the right to meet, unsupervised, with their clients. Additionally, it gives them the right to access to relevant materials—two privileges they did not have before. The amendment also states that lawyers will not be prosecuted for opinions or remarks made in court.

State media have lauded the changes as strengthening the rights of defendants. Xinhua, the state run newswire, had nothing but praise:
“The new amendment suggests that the assumption of innocence is becoming a dominant principle in dealing with criminal cases, and the protection of the rights of criminal suspects accepted as a representation of procedural justice.”

(The amendment is in conflict with China’s current criminal procedure law, but state media has reported that the CPL will soon be up for amendment itself.)

While the amendment to the Law on Lawyers does offer greater protection of the attorney-client relationship, rights granted in the CPL have been ignored in the past. A 1996 revision of the CPL gave defendants the right to hire and meet with legal counsel after initial interrogations by investigators. Later interpretations of the law conferred this right on the defendant’s family as well. In practice, however, police and prosecutors will claim state secrets are at risk or, more commonly, simply do not report the arrest, giving them no chance to contact a defense lawyer.

Vague language in the amended law may set off warning signs in the minds of some lawyers as to the possibility of future abuses. Lawyers are protected from prosecution unless they are found to be encouraging their clients to “create public disturbances” or “harm public order.” If a lawyer’s activities are deemed harmful to national security, they are also open to prosecution. Defense lawyers Guo Zhisheng, Guo Guoting and Yang Zaixin are three prominent examples of this practice in the past, harassed and punished after representing members of the Falun Gong.

Critics have also pointed out that the new law does not change the status of China’s national bar association, called the All-China Lawyers’ Association, which remains under the control of the Ministry of Justice. Lawyers associations, which exist at provincial and municipal levels as well, are classified as a ‘social’ and ‘self disciplinary’ organizations, emphasizing the dominant role of the judiciary.

The administrative organ of the judiciary also maintains the responsibilities of issuing practicing certificates to lawyers and approving the establishment of law firms.

No matter the drawbacks, the new amendments are a huge departure from where China was only 20 years ago. Before the Law on Lawyers was enacted, lawyers were classified as “State Legal Workers” and were considered a kind of government officer. Until 1993, partnership law firms were not recognized by the government. Before 1986, there was not an approved qualifying examination for lawyers.

Some even take the clashes between defense lawyers and local police and government officials as a sign that lawyers are becoming more proactive and innovative. It’s still a hard job, but at least somebody’s doing it.

(I’m stuck with only the Chinese version of the amendment, for the moment, but here it is for those who are interested.)


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