Independent role for lawyers in China
On March 5, the day the 2012 session of China’s National People’s Congress opened, Premier Wen Jiabao promised to enforce the law “in both letter and spirit, respect and uphold the sanctity of the Constitution and laws, and govern in strict accordance with the laws.”
He also said: “We will resolutely rectify the problems of laws not being abided by or fully enforced, lawbreakers not being prosecuted, uncivilized law enforcement, dereliction and neglect of duty, and corrupt practices in law enforcement.”
Wen was reporting to the parliament in his role as head of the government. But he is also one of the party’s top officials. After all, as the Chinese Constitution makes clear, it is the Communist Party that actually leads the country.
So when the premier spoke of laws not being abided by and lawbreakers not being prosecuted, he was in a true sense speaking of the failings not of the government but of the party.
China is a country where there is no rule of law, where the judiciary is not independent and where conscientious lawyers struggle hard to discharge their fiduciary duty to their clients.
Now, the Communist Party is trying to make the jobs of the lawyers even harder.
According to the Justice Ministry, all new lawyers must within three months of acquiring licenses swear an oath of loyalty to the Communist Party, regardless of whether they are party members or not.
In the current circumstances, lawyers are already on a knife’s edge. There have been cases where they have been imprisoned and disbarred simply for doing their job.
The lawyer Li Zhuang, for example, was arrested in 2009 and accused of “coaching his client to make false claims of torture.” This was in Chongqing, where torture was by all accounts ubiquitous. Li was sentenced to 18 months in prison and barred for life from practicing law.
Since the government is led by the party, swearing an oath of loyalty to the party presumably means that whenever lawyers are defending clients being prosecuted by the government, they are required to put the government’s interests first. This means that the accused are effectively being deprived of their right to legal representation.
It puts lawyers in an impossible position and makes nonsense of the premier’s promise to “govern in strict accordance with the laws” since the laws in theory provide for lawyers to play an independent role, not one subservient to the state and the Communist Party.
According to the Justice Ministry, the purpose of the oath among other things is to ensure that lawyers followed the core values of “loyalty, devotion to the people, justice and probity.”
However, surely the Justice Ministry knows that China’s prisons are full of high-ranking Communist Party members who showed a singular lack of “loyalty, devotion of the people, justice and probity.”
Precisely because power is concentrated in the hands of party members, they are the ones who tend to be corrupt.
The likelihood is that many lawyers will take the oath and then continue to do business as usual. But the oath will then hang over them like a sword of Damocles. It may come down on their heads at any time.
The Justice Ministry also says that the oath aims to “effectively improve the ideological and political quality, professional ethics and skills of lawyers.”
China is infamous for its lack of judicial independence precisely because the party interferes in the work of the judiciary.
Asking lawyers to take an oath in support of the party puts them in a position of conflict: should they support the theoretically independent judiciary or should they support the party when it interferes in the work of the judiciary?
This creates ethical problems for lawyers. It does not enhance their sense of ethics, precisely because the party lacks a sufficient sense of legal ethics.
The Communist Party is by definition a political party. It puts politics ahead of law. Asking lawyers to swear an oath to the party is asking lawyers, too, to put politics ahead of law.
Already, China has a chief justice who is a party apparatchik who never went to law school. Now it is trying to transform those who did go to law school into Communist Party apparatchiks as well.
Instead of subjecting lawyers to even tighter party control, China should allow the legal profession to be self-governing, just as it is in many other countries. Overtly subjecting lawyers to party control 16 years after passage of the Law on Lawyers, which sought to enhance professionalism, is highly retrograde.
Frank Ching is a journalist and commentator based in Hong Kong. E-mail the writer at firstname.lastname@example.org. Follow him on Twitter: @FrankChing1.