(Blogger’s Note: The blogger attended a talk at HKU on Tuesday (9 March), at which a Barrister-at-law, Mr YL Cheung, spoke about the situation facing the legal profession in China and the rule of law there. A 3-page handout titled “GENERAL OVERVIEW OF RULE OF LAW IN CHINA & THE LEGAL PROFESSION” was distributed at the talk and below is a reproduction of the handout. Texts in square brackets and in Chinese are provided by the blogger.)
1. Historical Perspective
- Until mid 50s, court structure of China was primitive
- Court system shut down since late 1950
- Re-opened in 80s: Since mid 80s, judiciary reinstated
- “State legal personnel”: Lawyers were state agents rather than independent legal practitioners.
- 1996, Lawyers Act [中華人民共和國律師法] enacted
- Nowadays: Lawyers (140,000-150,000) versus Judges (over 200,000) [In Hong Kong, the number of lawyers, solicitors and barristers included, outnumbers that of judges by several folds. The speaker gave the actual numbers at his talk, but the blogger has forgotten due to his poor memory.]
- Qualification: Since 2002, National Judicial Unified Examination.
- Statutory licensing requirement: Lawyers as well as firms are subject to annual renewal of practice licence.
- Article 306 [第三百零六條 【辯護人、訴訟代理人毀滅證據、偽造證據、妨害作證罪】 在刑事訴訟中，辯護人、訴訟代理人毀滅、偽造證據，幫助當事人毀滅、偽造證據，威脅、引誘證人違背事實改變證言或者作偽證的，處三年以下有期徒刑或者拘役；情節嚴重的，處三年以上七年以下有期徒刑], Crimes Act [中華人民共和國刑法]; Article 38, Criminal Litigation Act [第三十八條〔辯護人的義務〕 辯護律師和其他辯護人，不得幫助犯罪嫌疑人、被告人隱匿、毀滅、偽造證據或者串供，不得威脅、引誘證人改變證言或者作偽證以及進行其他干擾司法機關訴訟活動的行為。違反前款規定的，應當依法追究法律責任。].
2. Access to the justice system
- Difficulties in terms of interviewing clients, investigating and calling witnesses in the court proceedings.
- Around [year] 2000, there had been discussion about judicial independence. (See Article 126 of the Constitution [第一百二十六條 人民法院依照法律規定獨立行使審判權，不受行政機關、社會團體和個人的干涉。]) Since early 2000, such open discussion has been forbidden.
- Absence of judicial independence and Judicial Committee of the court.
- Courts’ arbitrary refusal to accept complaints or filing of law suits (e.g. land cases, etc.)
- Widespread corruption.
3. Lawyers’ Predicament (One of the most risky professions)
- 1949-1954: Lawyer system shut down (Justice Bureau’s order, Dec., 1950)
- 1954 Constitution: Right of Defence affirmed, lawyer system restored.
- 1956: Justice Bureau proposed lawyers legislation; 1957: Over 10 provinces set up lawyers association; 1,500 lawyers (full-time).
- Late 1950s, 90% [of] lawyers swept in the political movement and became ‘rightists’.
- 1966-1976: State became dysfunctional during Cultural Revolution.
- After Cultural Revolution, criminal defence system gradually re-built.
- 1979: Constitution affirms criminal litigation law.
- Subsequently, rules in connection with lawyers’ practice and audience in court litigation were enacted.
- In 1981, and later 1986, statutory codes of lawyers’ audience in proceedings were enacted.
- Until early 1990s, lawyers, being ‘State Legal Personel’, had their salary paid by the state.
- 1996 Lawyers Act: Lawyers’ status changed. Licence system/Instruction from clients/Provide legal service, etc. Also, lawyers’ rights of interview and perusal of case documents were provided.
- However, almost at the same time Article 306 of Crimes Act was enacted.
- 2002: National Judicial Unified Examination.
- Conflicting legislation: Article 33 of Lawyers Act 2007 (amended) provides for right of interview without presence of police [第三十三條 犯罪嫌疑人被偵查機關第一次訊問或者採取強制措施之日起，受委托的律師憑律師執業證書、律師事務所證明和委託書或者法律援助公函，有權會見犯罪嫌疑人、被告人，不被盜聽。]. BUT see Article 96 of Criminal Litigation Act [第九十六條〔律師介入偵查程序〕 犯罪嫌疑人在被偵查機關第一次訊問後或者採取強制措施之日起，可以聘請律師為其提供法律咨詢、代理申訴、控告。犯罪嫌疑人被逮捕的，聘請的律師可以為其申請取保候審。涉及國家秘密的案件，犯罪嫌疑人聘請律師，應當經偵查機關批准。受委托的律師有權向偵查機關了解犯罪嫌疑人涉嫌的罪名，可以會見在押的犯罪嫌疑人，向犯罪嫌疑人了解有關案件情況。律師會見在押的犯罪嫌疑人，偵查機關根據案件情況和需要可以派員在場。涉及國家秘密的案件，律師會見在押的犯罪嫌疑人，應當經偵查機關批准。].
- In the past few years, Party units are set up in the law firms.
- Rate of legal representation in criminal court (as low as below 10% to no more than 15% in most criminal cases).
- Uneven distribution of lawyers (e.g. near 20,000 in Beijing, less than 1,400 in Xinjiang, around 1,200 in Ning Xia, 450 in Qing Hai).
- Lawyers’ Associations subject to state administrative control. Their leaders occasionally help put down wei quan lawyers’ movement. (e.g. afgter the Tibetan uprising in March 2008, and further Xinjinag riot in July 2009, etc.). The Lawyers Associations are usually powerless when lawyers are abused during their normal practice.
- The Chief of Justice Bureau recently proclaimed guiding principles of lawyer: Emphasis on political causes, pay attention to the broad perspective and implication of cases, etc.
- Recently, the role and status of lawyers is defined as “legal personel of socialism with Chinese characteristics”. (Zhou Yong-kang, 2008: Secretary for the Committee of Political and Legal Affairs, Politburo member)
4. The difficulties of effective representation
- People do not trust the justice system; clients are often concerned whether lawyers have the necessary ‘guan xi’, or connection, when they engage the latter.
- Very few lawyers are willing to conduct criminal litigation cases, even fewer when ‘wei quan’ elements are involved.
- Lawyers’ difficulties in their practice: Interview, perusal, investigation and court attendance of witnesses.
- Low witness (including police) attendance rate in court proceedings; low legal representation rate in criminal cases.
- Pressure (including political, administrative, violent) from the authorities: Police, procuratorates, judges, Justice Bureau, Lawyers Associations, etc.
- In recent years, lawyers who have the courage to take up ‘sensitive’ cases, or human rights cases, often have to face from the state organisations violence, risk of losing personal liberty, risk of intimidation and personal humiliation, risk of losing their professional qualification and career, retaliatory measures of various types which sometimes extended to their law firms and families, etc.
5. The Road Ahead
- Despite all the difficulties, wei quan activities at all levels aims at promoting the notions of rule of law have never relented.
- There are more and more human rights lawyers and wei quan activists standing up.
- There are more and more public interest law centres operating across the country who are helping the ordinary people or underprivileged to fight for their lawful rights.
- On the academic level there are lots of excellent and influential scholars who have been working hard to promote the notion of rule of law.
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