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China Needs Real Defence Lawyers

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
September 17, 2002
South China Morning Post


Lawyers in China have come a long way since the end of the Cultural Revolution and the start of Deng Xiaoping's policy reforms. Once denounced as the worst type of intellectual and totally suppressed for more than 20 years after the 1957-1958 campaign against rightists, China's lawyers - now almost 20,000 in number - are transforming themselves from state legal workers to increasingly recognised, prosperous and semi-independent professionals. Many play an important role in business transactions that encourage economic development.

A growing number of lawyers promote the international trade, foreign investment and technology transfers that have spurred remarkable progress. Others foster the rights of women and children, and some dare to protect the rights of workers.

Although dismayed by the extent to which corruption, politics and personal influence affect their practice - even when settling disputes before courts - China's lawyers, by and large, now lead an increasingly attractive life. So attractive, indeed, that is has become difficult to recruit and retain top talent to serve as the country's under-appreciated and underpaid judges, prosecutors and law professors. According to some recent social surveys, being a lawyer is now considered one of China's most favoured career choices.

Criminal defence lawyers, however, are an exception. To be sure, some are well compensated and a few have become deservedly famous and admired. Yet even they face a daily life of disillusionment and danger, and their situation is not improving despite the hopes that accompanied the enactment in 1996 of the Lawyers Law and revision of the Criminal Procedure Law (CPL). Many of their frustrations occur at the crucial initial stage of the criminal process.

One of the major innovations of the 1996 CPL is the right it confers on a detained suspect, after the first interrogation by investigators or from the first day of detention, to select and meet a lawyer. In 1998 the revised law was authoritatively interpreted to confer on the family the right to retain a lawyer on behalf of the suspect, so that the legal counsel is recognised as having a right to meet the suspect.

These rights are not contingent upon the approval of the detaining authority, unless the case is determined to involve state secrets. Yet sometimes the police and prosecutors deny lawyers access to their clients on far-fetched claims of just that.

More often, the police simply do not transmit a detainee's request for a lawyer or delay or refuse access to counsel without giving any reason. If the frustrated criminal lawyer becomes too assertive in reciting the CPL provisions authorising access to his client, the police seldom hesitate to demonstrate who is boss, especially outside the major cities.

A more subtle technique frequently used by police and prosecutors to block a defence lawyer's entry into a case is simply to fail to comply with the CPL requirement to notify the family or employer of the detention within 24 hours, the reasons for detention, the identity of the detaining authority and the place of detention. If questioned about their failure to issue the required notice, law enforcement officials - an ironic name for those who so frequently violate it - shamelessly exploit an exception to the CPL's notification requirement, that the action would interfere with their investigation. Yet in most cases the only reason that notification might interfere is that it might lead the family or employer to retain counsel to meet the detainee and explain the nature of the alleged offence, his or her rights and the relevant procedures.

The CPL does not require a lawyer to show the detaining authority a copy of the detention notice in order to get access to his client. Yet police and prosecutors frequently take this position, and defence lawyers will often reluctantly tell a would-be client that they cannot even accept the case unless a copy of the detention notice is provided. This, of course, is a ludicrous situation, for it denies the family and employer of the detainee their legally guaranteed access to counsel at the outset of a case - a time when all they may know is that the suspect is missing and is probably in the custody of an unknown agency in an unknown place on an unknown charge.

This is when laymen urgently need the help of a criminal lawyer who has the knowledge and contacts to enable them to find the detainee, so that the rights conferred by the CPL can begin to be implemented. Moreover, if the detaining authority can defeat a lawyer's legally guaranteed entry into a case by failing to give the legally required detention notice, it has an added incentive to violate the CPL's notification requirements.

Another technique frequently used to keep lawyers out of the detention and investigation process is for the authorities to pretend that the suspect is not really detained but merely accommodated at a guest house run by the detaining agency. Since the case has not yet become a formal criminal matter, and might not become one, the family is often advised against legalising the situation by retaining a lawyer.

Similar techniques are even used on Communist Party members, who can be summoned by local discipline and inspection committees for investigation of matters that later become criminal. The procedure is called shuanggui and can result in a long period of incommunicado detention.

And, of course, when ordinary people are detained pending determination whether they should receive the administrative punishment of re-education through labour, which can result in three years in a labour camp, no detention notice is needed if the police believe the case is certain to result in this non-criminal punishment rather than a formal criminal sanction.

In some cases, the local bureau of the Ministry of Justice may forbid or discourage lawyers from assisting a detainee. Local justice bureaus used to exercise control over defence lawyers' conduct in all cases.

After the 1996 promulgation of the Lawyers Law and the revised CPL, they have relaxed their grip. Yet old habits die hard, and in some parts of China rules issued by local justice bureaus restrict defence lawyers to a varying extent in certain types of cases.

Jerome Alan Cohen is a professor at New York University and a member of the Council on Foreign Relations

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