QINGDAO, China, Nov. 19
Lawyers may say nothing in court deemed harmful to national security, slanderous or disturbing to the order of the court. In the future, lawyers may face prosecution over such remarks.
In reality, the law gives authorities the legal means to oppress lawyers who seek to defend people's human rights. It is regarded as a political attempt to stop courageous lawyers from defending dissidents, religious practitioners and human rights activists. The newly amended law will take effect June 1, 2008.
Chinese legal circles and academic law societies have long appealed for the court exemption right. In March 1991, the Judicial Department handed to the State Council a draft of the Lawyers Law of the People's Republic of China, which explicitly stipulated that lawyers would be immune from prosecution while legally defending the accused in criminal lawsuits. But the authorities opposed this right of exemption and it was not included in the final draft of the law.
Now the National People's Congress has gone further in amending the law to include the words "not allowed" with regard to what lawyers may say in court. This represents a real reversal of China's legal system. The law reflects a refusal to align China's laws with those of international society.
In most legal systems, lawyers cannot be detained or arrested because of remarks made in court or written documents submitted to the court on behalf of their clients. This is especially important in criminal lawsuits. This is not a special privilege granted to lawyers; it is merely a protection enabling them to carry out their responsibilities without personal legal risk.
This exemption from prosecution is designed to protect human rights. At present, the United Nations and many countries grant lawyers different degrees of immunity from prosecution; this has become a common international practice. Even in Hong Kong the law explicitly states that lawyers have no legal responsibility for slandering a third party while defending a client in court.
In China it is extremely critical to have this exemption from prosecution for lawyers, as this land has never had a proper legal system or a tradition of making laws based on human rights. Throughout the hundreds of years of feudal society, defending others has been regarded as an indecent profession. Defense lawyers were not included in the legal system of the ruling class in Chinese history. Moreover, the government never acknowledged that a defendant should have any rights at all. If a person came to trial, he or she was assumed to be a criminal. The authorities would not tolerate anyone attempting to defend an accused criminal.
This negative attitude has continued even after the New China was built by the Chinese Communist Party and the legal system was restored. Old concepts are deeply rooted in judicial practice. This makes it very risky for lawyers to do their job.
According to a 2006 report issued by Human Rights in China, an organization based in New York, the official All China Lawyers Association revealed that more than 500 Chinese lawyers had been detained or harassed up to that time. This is far from the government's promise to rule the nation by law. This reality underscores the necessity and urgency of giving Chinese lawyers the protection of exemption from prosecution while conducting their professional activities.
The provision of defense lawyers for the accused in criminal lawsuits is a significant step reflecting the progress of human civilization and ensuring judicial fairness and the protection of human rights. Fundamentally speaking, lawyers represent the confrontation and competition between the "private right" of the suspect to make his or her defense, and the "public right" of the country to prosecute the suspect.
The defense lawyers' profession is based on the principle that before being convicted and punished for a crime, suspects have the right to defend themselves or to appoint others to defend them. This universal principle is a profound lesson learned by the world after the dark Middle Ages in Europe, after the period of feudal society in China and after two world wars in which human rights were brutally violated.
Throughout China's recent "red history," contempt for human rights has brought great disaster to society. Even since the period of reforms and opening up, the "public right" of the authorities is still over weighted. Under these circumstances, it is very difficult for lawyers to confront the judicial authorities. Few lawyers are willing to speak boldly, or to defend the accused in high-risk cases. In this case, the criminal defense system is not worthy of the name.
The 17th Congress of the Chinese Communist Party has just ended, in which the CCP boasted of its objectives to "liberate thoughts and insist on reforms." But soon afterward, the Standing Committee of the NPC passed its amendment to the Lawyers Law, rejecting the universal practice of modern civilization. Where is the hope for China's legal system to progress?
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(Mu Chuanheng is a freelance writer and a former lawyer. He has published a number of books on trade negotiations and democratic politics. He is included in the book "World Celebrities [China Vol. 2], published in Hong Kong, for his new theory of culture. This article is edited and translated from the Chinese by UPI Asia Online; the original can be found at www.ncn.org. ©Copyright Mu Chuanheng.)
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