China's Troubled Legal Profession

by Eva Pus

AT A MEETING of 400 senior Beijing lawyers in April, the president of the Haidian district branch of the Beijing Lawyers' Associa tion, Li Dajin, seemed exasperated. The city's legal profession had developed so well, he said, until one lawyer took a case on behalf of a Falun Gong practitioner: "But then in 2005-06 we had one Gao Zhisheng-one fly spoiling the entire pot of soup!" To add to his woes, 18 other lawyers, mostly based in Beijing, had just pub- licly offered legal assistance to Tibetans who had been detained on suspicion of crimes during the March 2008 Lhasa riots. These lawyers had expressed their hope that the authorities would handle the Ti- betans in accordance with law and ensure they were not tortured.

To Mr. Li, this amounted to a betrayal of the profession. He asked, "Why did they not offer their legal assistance to the victims and to the injured warriors of the People's Armed Police? Where has their political consciousness gone?" According to an account of his speech circulated on the Internet by some lawyers who were the target of his anger, he suggested that "a clever way be found to ensure that any lawyer who damages our reputation will have their rice-bowl smashed by us."

The 18 lawyers who made the offer to defend Tibetans had already received "warnings" from the justice bureaus responsible for them. Possibly inspired by Mr. Li, these authorities are now using the usually pro forma annual reregistration procedure concluding on May 31 as an op- portunity to punish the lawyers concerned and their law firms. Some 500 lawyers working in Beijing law firms were reported to have encountered "difficulties" with reregistration. Some of the affected lawyers were told that they were in trouble for becoming involved in unspecified "sensitive" cases.

As of this writing, two Beijing lawyers confirm that they have not been able to reregister, which could mean they will not be allowed to practice as lawyers for a year until the time of the next registration exercise. If in that case, they represent clients in court as lay representatives, as they are allowed to do under Chinese law, they can not take any fees. Incidentally, no Tibetan is actually known so far to have accepted the courageous offer of legal assistance.

The vilification of criminal defense lawyers for defending "bad guys," especially in politically controversial cases, is common in many places. But what is remarkable about the Chinese legal environment is the ease with which lawyers, even those occupying important official positions such as Mr. Li, can slip back into the attitudes of political correctness of the 1960s and 1970s, when enemies of the people were not considered deserving of procedural legal protections, and the very idea of law was often vilified. Although the government has committed to many human rights on paper, in particular in its constitution, criminal procedure laws and administrative regulations, Chinese law continues to reflect such attitudes in practice.

The forms of law can still be used against Chinese rights activists far more effectively than they can use the law to support their own causes, because many of these causes represent a political chal- lenge to China's "people's democratic dic- tatorship." Probably as a consequence of their own early successes, human-rights lawyers have in recent years been subjected to increasing pressures, not only from the police, public prosecution authorities and justice bureaus, but also from the as- sociations supposed to represent their own interests. They may be able, eloquent, and professional-in 2001 the Ministry of Jus- tice named Gao Zhisheng as one of the country's 10 best lawyers. But they have no chance of winning their most daring argu- ments in court and sometimes they cannot even get as far as the courtroom. Some hu- man-rights lawyers who went too far have been prosecuted and convicted of crimes. The offence of choice for the public prosecution authorities has become that of"inciting subversion of state power." Mr. Gao was convicted of this crime in 2006 after publicly alleging the cruel persecution oFalun Gong practitioners, whose complaints were excluded from adjudication by the courts. (Mr. Gao was quickly "released" into 24-hour surveillance at his Beijing home in degrading conditions, not allowed to practice and not allowed to speak publicly, and has been out of touch with his friends since October 2007.)
Efforts to control human-rights lawyers and other activists are almost always based on a dual strategy of using legal forms in illegal ways and for unjustifiable purposes. The denial of reregistration is just one example that may signal the beginning of trouble for a lawyer and his professional and personal contacts. Another difficulty befalling a recalcitrant lawyer will often consist in surveillance and house arrests, or even abductions and beatings. Last year Mr. Gao's friend Li Heping, also a lawyer, was beaten with electric prods for four hours, and told he must leave Beijing during the time of the Olympic Games. He refused to do so.

Guo Feixiong, an activist who had been involved in one of the most famous legal cases of villagers rising against corruption in a land grab context, was convicted of an running illegal business and is now serving a prison sentence in Guangzhou. In police detention, he suffered severe torture and reportedly tried to kill himself. Lawyer Teng Biao, one of the 18 who offered legal help to Tibetans, has lived with surveillance and occasional detentions for years, and so far managed to steer clear of worse consequences. But he is kept well aware of what might happen by the police officers and hired thugs in charge of him, and conversation with him and his colleagues not infrequently turns to the question, "Who will be next?"

This is why the words of Mr. Li of the Beijing Lawyers' Association make a twisted kind of sense in the repressive environment of China's political and legal system. The most discouraging and most effective form of repression of lawyers is through the consciousness of their colleagues and friends, who will suffer by association, as Mr. Li observed, if one of their number becomes implicated.

The repression machine is unlikely to run out of targets. Last month, for instance, the famous Chinese rights activist, Hu Jia, applied for a distance study program from his prison in Tianjin City; and of all subjects, Mr. Hu chose to apply to study law. If he plans to continue engaging in human-rights issues after his release, he can have no illusions about the difficulties such a choice will bring. His own recent experience with torture as part of the criminal investigation process and his own deeply flawed trial should have deepened his insights into the system he is up against.

Why then does law have such undiminished attraction for many activists in China who want to change their country? The law is all they have, and with its language of rights and justice it cannot be entirely appropriated by a ruling political power, even one that is extremely unwilling to allow criticism of its own rights violations. In the most mundane and "unpolitical" commercial law cases Chinese legal practice cannot eliminate arguments; it is an attitude that easily carries over into more politically controversial, or to use the official word, politically "sensitive" cases. And just like other citizens protesting injustice, lawyers will put faith in the words of the law even when party and state authorities keep discouraging and intimidating them. It is often a faith based in conviction rather than in a real expectation of winning a case.

The party-state is therefore quite correct in viewing the legal profession as po- tentially subversive-it is professionally inclined to subvert those parts of the Chinese legal and political system that remain stuck in the Cultural Revolution era. The recent amendment of the Lawyers Law shows that by not relenting, the state only involves itself in further contradictions.

That can be seen in the new law's Article 37, which provides for immunity for statements made by lawyers in court-with several exceptions, including statements that "endanger state security." But how should state security be understood here, lawyer Teng Biao asks with bitterness? He points to the party-state's already impressive arsenal of unequal weapons in its confrontation with human-rights defenders. "Can lawyers endanger state security by making oral statements in court? If yes, how can state security be this fragile and weak? And which is more important, the security of the state, or the security of the people?"