China’s lawyers must speak out

Last week prosecutors in Chongqing finally dropped charges against the defense lawyer Li Zhuang (李庄), who had been accused of inciting a witness to give false testimony in an embezzlement case in 2008. The case against Li Zhuang, who is nearing the end of an 18-month jail sentence for a separate alleged crime of which he insists he is innocent, prompted concern from many lawyers in China, who argued it set a dangerous precedent for going after defense lawyers with charges of “perjury” and upholding weak evidentiary standards.

In both cases against Li Zhuang, this year and in 2009, prosecutors relied on written witness statements for witnesses who never appeared in court for cross-examination.

The Li Zhuang case has been highly sensitive, and according to many Chinese journalists and bloggers writing on Twitter last week, a ban was in effect instructing media to use only official releases from Xinhua News Agency, to avoid “playing up” the story and to refrain from commentary.

For more background on the Li Zhuang case, readers can turn to Ian Johnson’s recent report for The New York Times. We also encourage you to read our version of the open letter from legal scholar He Weifang (贺卫方), which he has now posted to his blog with the original, and in which he argues in light of the Li Zhuang case that “the ideal of rule of law is right now being lost” in China.

A number of valuable commentaries on the Li Zhuang case and rule of law in China have appeared in the domestic media and in China’s blogosphere in recent weeks. Below we offer a translation of a recent blog piece by Jiang Ping (江平), a tenured professor at China University of Political Science and Law who is one of China’s most prominent legal minds. We also point you to this relevant post on Jiang Ping at Chinese Law Prof Blog.

Lawyers Must Be Able to Speak
By Jiang Ping (江平)

This is the second round of the Li Zhuang case. And like the first round, it was drawn widespread attention and brought fierce controversy. In many ways, the case can be seen as an indicator of where rule of law in China is heading.

During the initial and second-instance hearings of the Li Zhuang case last year, I offered some opinions of my own. Judging from the situation at the time, I didn’t get into the debate over [Li Zhuang's guilt] but only looked at a number of issues worthy of deliberation from a procedural standpoint. In the first instance hearing, for example, there was no calling of witnesses whatsoever. And after the verdict was announced in the second instance hearing, Li Zhuang shouted out, “I don’t admit guilt!” and said that his previous confession was “phony.” He had only plead guilty after receiving certain assurances, but the ultimate verdict differed from these assurances. By rights, the court should in this situation have recessed and moved for a retrial. If Li Zhuang did not confess, what reason would the court have to reduce his sentence? If Li Zhuang’s confession was the result of a huge misunderstanding, or if someone actually did give him assurances of some kind, the court should get to the bottom of this matter. For the case to wrap up so hastily without looking into such a major matter hardly gives reason for confidence.

Now, Li Zhuang’s 18-month sentence is about to end, and a new charge is laid against him — that of “perjury” (伪证). The law does allow for the discovery of new crimes and the making of new indictments after a person has been sentenced. However, based on what I have seen lately, this new indictment of the lawyer Li Zhuang for “false testimony” gives one the feeling that “a charge is being found for the sake of condemning someone” (欲加之罪,何患无辞).

Evidence in the “first round” of the perjury case against Li Zhuang consisted largely of witness statements from witnesses. During Li Zhuang’s meetings with [his client] Gong Gangmo (龚刚模) personnel from investigative organs were present, who told how his had implied with “a wink of the eye” and instigated Gong Gangmo to to perjure himself. Relying only on written testimony, with the witnesses not appearing in court for cross-examination, the evidence was insufficient. In the “second round” of the Li Zhuang case the accusations said again that he had, while conducting criminal defense at a certain place in Shanghai, “lured and incited Xu Lijun (徐丽军) to breach objective facts and change [his] testimony.” Again, the principle evidence was witness statements, and again these witnesses did not appear in court.

The so-called “verbal statement without any proof” (空口无凭), using only written statements to establish guilt, is extremely dangerous, particularly in cases where lawyers are being accused of perjury. In the midst of their professional duties, particularly in the investigation and gathering of evidence, and in conversations with witnesses and parties involved, lawyers in many cases do not have a third person present to offer proof. If this process is used in order to establish the lawyer’s guilt, the danger in this is huge! For criminal defense attorneys, this basically amounts to the “curse of the golden hoop” [used in the Chinese classic The Journey West to keep Monkey under control]. The personal security and freedom of lawyers might at any time suffer grave threat, resulting in massive risk for the entire legal profession!

In the Criminal Law, “lawyer’s perjury” is basically something about which there is much controversy. The police, prosecutors, parties involved in cases, witnesses, all might perjure themselves, but why should their legal representatives be singled out for charges of perjury? I completely feel that this crime needs to be handled with extreme caution, and must not be used willy nilly. The crime of perjury must be proven with the most thorough and complete evidence, and cannot simply be determined through written statements.

In the defense of criminal cases, the procuratorate represents the government in pursuing charges against criminal suspects, which means the accused faces a formidable organ of public power. The role of the lawyer is to plead the case for and provide legal help to criminal suspects and defendants who are held by these authorities in positions of weakness. This is a basic requirement of judicial fairness and the preservation of human rights.

In China, criminal defense is of particular value. Throughout the process of investigation, prosecution and sentencing, there is generally insufficient protection of the rights of suspects and defendants, and extraction of confession by torture is common. In 2010, the . . . “Provisions on Several Issues Concerning the Examination and Judgement of Evidence in Death Penalty Cases” and “Provisions on Several Issues Concerning the Handling of Illegal Evidence in Criminal Cases” were issued, preliminarily establishing exclusionary rules on illegal evidence in China.

But the implementation of these regulations has become a major issue. Because searching out and demonstrating illegal evidence used by procuratorial organs means going directly up against these organs and even directly exposing their illegal conduct, which leads to an even stronger counterattack.

Under the current situation in which “lawyer’s perjury” is abused, if defense lawyers inquire whether the suspect’s confession was extracted through torture, or through entrapment, they easily fall into the net of perjury charges.

During the “first round” of the Li Zhuang case, the initial reaction from lawyers was that [the case posed a] “threat to criminal procedure.” Now, in the “second round,” I believe we’re seeing a warning shot fired at those lawyers who dared to play devil’s advocate [the last time around]: we can come back to settle these old scores with you. The cases you’ve represented in the past, even if verdicts have been rendered and the cases concluded, we can still revisit the issue of your responsibility.

But lawyers are a crucial part of our system of law, they are important theoreticians and practitioners of rule of law, and play a key role in its dissemination. This is a profession that must speak out!

I’ve said before that a country’s system of lawyers is a “shop window” opening on to rule of law in that country.

What we are seeing right now is that the lawyer’s rights stipulated in our “Lawyers Law” are not being properly protected, and in too many instances lawyers are faced with the “curse of the golden hoop”, and “forbidden zones” are being erected everywhere . . .

All of these things are stumbling blocks in the building of rule of law. If there is no tolerance toward lawyers, and even lawyers are not permitted to speak, how can judicial justice be ensured?

2 Comments to “China’s lawyers must speak out”

  1. thealephmag says:

    What surprises outside observers of China about the recent crackdown on lawyers is that the government could believe lawyers, particularly those working in human rights, are sufficiently efficacious to merit silencing. The assumption is that the outcome of high profile cases, many of which have political implications, are determined by extra-legal actors. An advocate only makes a difference in the lower profile cases that the state can afford to have decided based on the persuasiveness of arguments from both sides. If this is true, and the article suggests that it is, then the objective of the crackdown is not really to undermine the clout of individual lawyers. Rather, the government is probably looking for a scapegoat for its frustrations with recent legal reforms, particularly in the area of criminal procedure. As the legal system becomes more robust, so does the lawyer’s profession. Whereas the state could easily direct the outcome of a case under the old regime, it must now deal with inconvenient resistance from skilled and passionate advocates and the new laws they are armed with. The logic is that if the lawyers are silenced, the legal system will revert to what it once was; repealing the laws themselves would be considered an even worse PR move. The strategy is not fooling the international community. As hated as they are in parts of the world where there are too many of them, lawyers are an essential part of an advanced legal infrastructure. Until China respects their role in the modern legal system, a body of law that matches the impressiveness of its economic prowess is a delusion.

    http://thealephmag.com/2011/05/02/those-wise-restraints-that-make-men-free/

  2. ltlee says:

    “The so-called “verbal statement without any proof” (空口无凭), using only written statements to establish guilt, is extremely dangerous, particularly in cases where lawyers are being accused of perjury. In the midst of their professional duties, particularly in the investigation and gathering of evidence, and in conversations with witnesses and parties involved, lawyers in many cases do not have a third person present to offer proof. ”

    Does the law forbid any kind of recording?

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