Translation: The Most Important Politics for Lawyers is Pursuing Rule of Law

One of the fundamental dilemmas facing Chinese leaders today involves the relationship between political control and social stability. On the one hand are those who try to pursue stability through policing, propaganda, and maintaining tight political control over social institutions. On the other hand are those who see this emphasis on "rigid stability" as counterproductive and instead counsel allowing freer range to a variety of social forces, including the media, public opinion, and civil society organizations.

Debate over the role of lawyers and the nature of the Chinese legal system as a whole is one area in which this dynamic between control and stability has become especially relevant. Where there was once visible momentum towards developing professionalization and autonomy among legal professionals, recent years have seen a turn towards increased politicization of the legal sector under the doctrine of the "Three Supremes," with greater emphasis placed on the Communist Party's guiding role and the importance of popular opinion in determining legal outcomes.

In this environment, lawyers whose solitary efforts to protect the rights of individuals come into conflict with the prevailing sensibilities can find themselves confronted with numerous obstacles and sometimes physical danger. There is even a fear that lawyers have been detained and disappeared over recent weeks as part of a larger effort to cultivate a more compliant cadre of lawyers in China, one made up of individuals less likely to openly confront the rich and powerful and more willing to accept decisions mediated by political considerations.

Further evidence of this can be seen in recently announced plans in Shanxi Province to screen applicants for lawyers' licenses based in part on political considerations. In an item in the latest issue of New Century Weekly (republished in a variety of other mainland media outlets in recent days), Hong Kong University law professor Zheng Ge (George Zheng) argues that measures like this threaten to erase more than two decades of progress from the days when all criminal defense lawyers were employees of the state.

Without denying China the opportunity to pursue its own "socialist system of laws with Chinese characteristics," Zheng contends that that pursuit would be better served by allowing lawyers to help people pursue their contentious demands in a rational, systematic manner that treats the rights of all parties equally before the law. Otherwise, he suggests, China faces being trapped in a vicious cycle of injustice and violence that is far from the "harmonious society" the nation's leaders envisage.

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The Most Important Politics for Lawyers is Pursuing Rule of Law

Zheng Ge

New Century Weekly

April 25, 2011

     Recently, the Shanxi Judicial Administration Department unveiled new policy guidelines aimed at promoting a province-wide system to evaluate the conduct of those applying for a license to practice as a lawyer. It would require all law firms in the province to collect information from public security, education, personnel, and other relevant departments and, on the basis of a comprehensive review, produce conduct evaluations to “ensure the quality of those entering the lawyer profession from the beginning.”

     What is meant here by “conduct” is not only personal character and professional ethics but also an emphasis on “political behavior.” This is an implementation of the  “Opinion on Further Strengthening and Improving the Work of Lawyers” issued by the Ministry of Justice (MOJ) in November 2010, whose “Four Adherings”—namely, adhering to holding high the banner of socialism, adhering to using the theory of scientific development to guide the work of lawyers, adhering to the essential character of lawyers as workers in the socialist [system of] laws with Chinese characteristics, and adhering to the party’s leadership over the work of lawyers—form the index against which the aforementioned “political behavior” will be measured. This Opinion specifically mentions improving the mechanism for admittance into legal practice and barring those people with poor “political character, professional ability, and professional ethics” from joining the ranks of lawyers.

     The reversion of lawyers under the politico-legal system undermines the accomplishments of the past two decades of reform. Ever since 1993, when the State Council approved the MOJ’s “Plan to Further Intensify Reform of the Work of Lawyers”—and especially since 1996, when the Lawyer’s Law defined lawyers as “professionals serving the legal needs of society”—the legal profession has distanced itself from the former system of “state legal workers,” allying itself with society in conflicts between state and society and with rights in conflicts between power and rights. This development path is in line with the general direction pointed to in the ruling party’s “Resolution on Certain Questions in the History of the Party Since the Founding of the PRC”: “[We must] improve our Constitution and laws and turn them into a powerful and inviolable [instrument] that all persons must strictly observe. . . . The kind of chaotic situation  seen in the ‘Cultural Revolution’ must never be allowed to happen again in any sphere.” 

     Ensuring that the common people strictly observe the law is the role of government, whereas ensuring that the government itself strictly observes the law is the function of society, which includes lawyers. If the power structure absorbs all social elites, thereby monopolizing the legal discourse, the result is [a situation in which those in power can say] “I’ll be the judge of what’s legal and illegal” and spokespersons for power can plainly say to certain members of the public: “Don’t use law as a shield; the law cannot protect you.”

     Another matter whose connection to the recent trend towards “political” lawyers  is greater than it first appears is the Beijing Lawyers’ Association’s “local registration” requirement. According to personnel policies in Beijing, individuals from outside of Beijing cannot register [as lawyers] in their own names and can only register collectively in the name of their work unit. In reality, this is a crafty way of using administrative measures to restrict out-of-town lawyers from practicing in Beijing. The backdrop for this policy is probably a fear that out-of-towners like Li Zhuang will continue to present themselves as “Beijing lawyers” and cause trouble in the provinces; so, under pressure from all sides, the Beijing Lawyers’ Association has to adopt measures to raise the threshold for admittance as a “Beijing lawyer.” Political considerations are one of the deciding factors.

     Allowing lawyers or even all legal professionals a certain amount of independence will not cause China to “change color.” On the contrary, it would be fundamentally beneficial to China’s political stability and economic development, as well as helpful to improving the ethics and living standards of Chinese people.

     In other words, lawyers should absolutely be concerned with politics, but the most important politics for lawyers is pursuing rule of law and using legal channels to help citizens express their legal demands and protect their legal rights. If lawyers’ “political character” is measured purely on whether they assist the government in maintaining stability or defending economic development and “rights-defending lawyers” are viewed as displaying poor political behavior, then the legal profession will lose its need for existence.

     As for what role lawyers should play in a country with socialist rule of law, here are some factors worth considering:

     First, citizens’ moral reasoning and moral judgment should not be stuck at the level of black versus white. When lawyers go head to head in the courtroom with prosecutors or other lawyers, [the way they] present evidence or engage in debate allows people to see the complexity of truth and legal principles. In the recent cases of Li Gang’s son, Yao Jiaxin, and other cases that inflamed popular anger, we see how popular opinion is mostly one-sided, involving groundless accusations and crude, simplistic judgment. This kind of real-life “ideographic expression” is connected to the institutional lack of mechanisms whereby different positions and viewpoints may confront and debate each other.

     Second, the independent, professional legal service that lawyers provide to clients could fundamentally enable the authority of the law to contribute to stability. You cannot stand on one leg alone. If all the participants in the legal process pursue the same objective, then that legal process will be unable to resolve disputes, balance interests, or establish the law’s authority. Different interest demands need to be expressed through systematic channels and in a calm, rational manner. Otherwise, we will fall into a vicious cycle of violence leading to repression, leading in turn to greater violence and again to even greater repression.

     Third, in the course of providing legal services to a client, a lawyer’s speech and activities ought to be protected by law to a certain degree. If a defendant can turn in a lawyer for “suborning perjury” and, acknowledged as having performed meritorious service by the prosecution, avoid the death penalty by bringing the lawyer to justice, this sort of “conspiracy” completely undermines the ethical and legal protections that lawyers—at least criminal defense lawyers—need in order to do their work. Turning this around, will those “political” lawyers now be able to report their clients in order to render meritorious service?

     Fourth, meaningful participation by lawyers can exercise oversight over the administration of judicial power. To be sure, lawyers are complicit in many judicial corruption cases, but the blame for this is not simply a matter of lawyers’ “inattention to politics” or “poor standards.” The institutional cause is precisely the low status of lawyers, which allows judges to give less consideration to lawyers’ opinions in the trial or adjudication processes. Therefore, [monetary] advantage replaces [legal] principle and lawyers can only employ cash and other benefit to “persuade judges.”

     Fifth, lawyers’ ethical and professional standards cannot be improved through politics; they are formed through routinized, institutional incentive mechanisms. Emphasizing political quality can only drive lawyers away from “rights defense” and gradually force them to serve capital and power. This will cause an already-unbalanced legal services market to distance itself further away from the weakest [members of society].

Death Penalty Trends in Asia Have Possible Implications for China

In Asia, the latest controversy over the use of the death penalty erupted not in mainland China but across the strait in Taiwan. In January, the defense ministry there was forced to issue a public apology for a wrongful execution in 1997, followed in early March by the execution of five prisoners without notifying their families.

Advocacy groups decried the executions, the European Union expressed its revulsion, and protests broke out. Taiwan’s leadership has responded defiantly. In late March, President Ma Ying-jeou announced that Taiwan would keep carrying out executions of death row inmates as its laws mandate but that the government, which has reduced the use of the death penalty, maintains a policy to phase it out through existing laws and regulations—as in the recent replacement of mandated death sentences with discretionary sentencing.

Taiwan's former justice minister Wang Ching-feng (L)
was replaced by former prosecutor Tseng Yung-fu (R)
after she refused to carry out executions.

An informal four-year moratorium on executions in Taiwan—no one had been put to death since 2005—came to a swift but somewhat anticipated end last year. In April 2010, Taiwan executed five inmates just days after swearing in new Minister of Justice Tseng Yung-fu, a former prosecutor whose strong support for capital punishment stood in sharp contrast to his pro-abolitionist predecessor, Wang Ching-feng, a former human rights lawyer who had been forced to resign when conservatives from ruling Kuomintang objected to her refusal to consent to executions.

While executions in Taiwan have sharply decreased since the early 1990s, the handling of capital crimes there has not always met basic standards of human rights and criminal justice. For one, Taiwan does not routinely inform family members of the condemned in advance of an execution. Taiwan also lacks procedures for those under sentence of death to seek a pardon or commutation—a right recognized under the International Covenant on Civil and Political Rights, which Taiwan has legally agreed to implement.

Death Penalty Politics, Opinions & Laws

The global trend against capital punishment appears to be having limited impact in Taiwan, Japan, and South Korea—the three industrialized Asian democracies with death penalty laws—where the issue has generally been left to the discretion of a few officials.

Polls show that the public in all three places overwhelmingly wants to retain the death penalty. Polling in Taiwan and South Korea has revealed over 70 percent support for capital punishment, and results of a 2010 survey show more than 85 percent of respondents in Japan favor keeping it. In contrast, only small minorities support full abolition. Although Korea has a state-issued moratorium and has had no executions since 1997, a 2009 poll showed less than 20 percent in favor of abolition. And the numbers are positively miniscule in Taiwan, where only about 2 percent in a 2010 poll supported abolition.

Though considered “abolitionist in practice,” Korea still has a staggering 110 crimes subject to the death penalty, or twice the number as in China. In early 2010, Korea’s Constitutional Court deliberated over capital punishment for the second time, ruling by a narrow 5-4 majority that the death penalty is constitutional. The previous ruling, in 1996, upheld the legality by a wider margin of 7 to 2, so last year’s decision may signify that Korea is moving closer toward abolition.

There’s substantial political will in all three places to find a middle ground that would effectively ban the death penalty without legally abolishing it. Korea’s Ministry of Justice is thinking to replace the death sentence with life without parole, and in late 2010, a justice ministry task force in Taiwan made the same suggestion. Called a “special life sentence” in Taiwan, it is as popular with the public there as retaining the capital option. This past January, Japan’s new justice minister, a long-time opponent of capital punishment, ordered his staff to consider getting rid of the death penalty.

Some Common Ground with China

The death penalty, like any punishment, is subject to errors that undermine its legitimacy. In Taiwan and Japan, prisoners on death row have been exonerated and freed. Torture has been used to extract confessions from innocent people who have later been executed, as seen with the presidential apology in Taiwan. In such instances, it’s possible to draw parallels between China and its neighbors. China has also set death row prisoners free, admitted that innocent people have been executed, and reassessed its death penalty practices; China has made much of its increasingly “careful” use of capital punishment, and the Supreme People’s Court's more stringent final review of death sentences has been credited in helping to reduce executions. (Read more about wrongful convictions and executions in the US and China in Dialogue Issue 42.)

Even lawmakers in China and Korea—two countries at opposite extremes of the spectrum of death penalty use—share a common problem: how to decrease the huge number of crimes eligible for the death penalty. Even if its efforts are more symbolic than substantive, China is actually ahead of Korea in this regard. In February, China’s National People’s Congress Standing Committee approved changes to the Criminal Law that removed 13 crimes (among a total of 68) from death penalty eligibility. Meanwhile, cutting down on capital offenses in Korea is only at a discussion stage. Of the 110 crimes punishable by death, only 12 are serious violent offenses. Many of the rest are political, economic, ideological, and administrative crimes, and their status as offenses punishable by death stands as a relic of Korea’s authoritarian past.

Besides some widely criticized executions in China, none in recent times in that part of the world have been condemned as much as those in Taiwan, where the current political environment holds little promise for the 40 prisoners who remain on its death row. At least the contested political process in Taiwan is likely to ensure that a healthy public debate continues, a debate that will influence the fate of capital punishment there and in Asia more broadly.