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.
*
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].
