Beijing Review Examines Key Issues in China's Legal Profession, Among Them the Obstacles Faced By Defense Lawyers
In a revealing article originally published in October 2004, the Beijing Review examines three major issues in China’s evolving legal profession: the problem of corruption, the threat of official retribution faced by defense lawyers, and the prospect of amendments to the PRC Lawyers Law that may enhance the independence of lawyers associations.
On the issue of corruption, the piece quotes Chinese lawyers who indicate that lawyers commonly bribe judges and that the “secret” of successful firms is often their connections with local judges. In April 2004, China’s Ministry of Justice, which regulates the legal profession, launched a yearlong “education and discipline” campaign targeting the legal profession. MOJ officials quoted in the article assert that the campaign is necessary not only to improve the image of lawyers and preserve judicial authority, but also to “sharpen their competitive edge” to meet the challenge of foreign legal competition.
The article then turns to the problem of lawyer harassment and, in particular, controversy over the improper prosecution of some defense lawyers for “evidence fabrication” under Article 306 of the PRC Criminal Code. According to statistics cited in the piece, of 23 lawyers actually tried on charges of evidence fabrication, 11 have been proven innocent, and nearly 80% of the 500 lawyers detained, accused, or punished for any reason between 1997 to 2002 were “eventually found innocent of any wrongdoing.” As one lawyer quoted in the article concludes, “If lawyers harm the interests of the police or procurator, they are likely to be accused of violating the article [Article 306].” The result, suggests the author, is an unwillingness on the part of lawyers to represent criminal defendants or to be aggressive advocates when they do. According to a Beijing law professor, more than 70% of criminal defendants tried for charges involving a “fatality” are not represented by counsel.
Finally, the article cites experts who argue that lawyers associations should have more independence in dealing with professional misconduct and suggests that revisions to the Lawyers Law may move in this direction.
Chinese defense lawyers have long complained that harassment, threats, and other official obstacles prevent them from properly representing their clients. The CECC examined this issue in a topic paper published in May 2003. The subject has proved to be a sensitive one for the Chinese government. According to a September 2004 report in the 21st Century Business Herald, Beijing justice bureau officials have obstructed domestic efforts to publish research on the harassment of defense attorneys. In the spring of 2004, the Chinese Ministry of Foreign Affairs spokesman characterized U.S. accusations that defense lawyers have been jailed on trumped up charges as “groundless.” As the Beijing Review report suggests, however, Chinese experts seem to believe that such problems do exist.