Thursday, February 09, 2012

Part VI—Zhiwei Tong (童之伟) Series: Society as a whole should support criminal defense lawyers as they perform their duties according to the law

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistant, YiYang Cao for his able work in translating these essays.


 (Pix (c) Larry Catá Backer 2012)

Part VI—Zhiwei Tong (童之伟) Series: Society as a whole should support criminal defense lawyers as they perform their duties according to the law
July 31, 2011

Although I am teaching a course on the constitution, I have represented clients in a number of civil trials, though I never took on a criminal case.  In the last two years, I have always paid attention to the affairs of my civil defense lawyer friends.  I have recently kept up with the situation in Beihai, consistently reading brother Guangwu’s website and brother Youxi’s website.  I already had some knowledge of the situation regarding the Beihai lawyer, and I just re-watched the video of what happened to brother Guangwu and others with the guards on duty in front of the hotel in Beihai.  Although the video did not show us much in the way of evidence related to the case, it does allow us to feel the extent of the harsh environment that lawyers have to practice in.  Very obviously, the “masses” that threaten the personal safety of lawyers and disrupt meetings between lawyers and their clients were instigated by the public security organs or other public authorities.  However, the aim seems not to be to hurt the lawyers, but to ensure that the lawyers are driven from Beihai and from Guangxi province.  The kind of behavior that they engage in is illegal and is carried out in a low-level fashion.  Public authorities must possess righteousness and the moral high ground.  They must not engage in this kind of lowly behavior and cannot allow the people to feel that those in power are individuals who act rashly.

While there is a difference between those of us who teach the law and those who practice the law, we are all individuals who rely upon the law to sustain our families.  The knowledge of the law cannot be divorced from reality.  With regards to the incident in Beihai, if I was not buried under work, I originally wanted to write an article to support and appeal for a lawyer friend.  However, my “leader” had scheduled me to write an article and I will need to write another article for a planned trip to go to Hong Kong City University School of Law to participate in a seminar on the development of the Chinese rule of law.  I had to set aside my interest in the Beihai incident due to my schedule.  Thus it is an honor to be invited today and a pleasure to see so many famous lawyers.

With regards to criminal defense lawyers, I just had some ideas that I wanted to take this opportunity to talk about and hope that we can exchange views on the developments in this field.  However, my words are not meant to influence my lawyer and scholar friends in the legal community.  Instead, they are meant to influence people outside the legal profession.  Therefore, if I were to write an article, I would be willing to post it on websites outside of those frequented by the legal community, like the Chinese Election and Governance website and Common Understanding website, among others.

I believe that the responsibilities and mission of criminal defense lawyers in China are particularly significant.  The entire society as a whole should support a criminal defense lawyer practicing in accordance with the law.  Below, I will speak of a number of reasons and views, I hope that everyone will take the opportunity to critique.

1.     When various states establish the expectations of a criminal defense system, they expect nothing less than in the handling of the process of criminal cases that the criminal prosecution and the defense counsel work together to ensure that the evidence is refereed so that the court, judge and jury can understand the facts of the case to correctly apply the law.  Therefore, that the defense and prosecution are treated equally is a necessary condition to ensure that the relevant laws are fully implemented and accurately applied.  To damage or obstruct counsel is to essentially damage and obstruct the current criminal justice system.  This principle is something that should be recognized as common sense by both the political and legal spheres.  Therefore, in a contemporary country governed by the rule of law, it is necessary for all levels of society to recognize and support the activities of criminal defense lawyers.  But in China, the behavior of certain individuals with public authority towards criminal defense lawyers has been irrational and swayed by emotions, lacking in the wisdom and broad-mindedness necessary for a political figure.

2.     With regards to the specific analysis of the relationship between criminal defense lawyers and public power, we cannot simplify the activities of the criminal defense lawyers as merely lawyers or as individuals opposing or confronting public power.  In China, criminal defense lawyer’s duty is to defend the accused, technically in opposition to or confrontation with the power of investigation accorded to the public authorities and the prosecutorial powers.  However, this opposition is not hostile and not to create mutual enmity between the parties.  Instead, it is to fully implement and accurately apply an institutional arrangement aimed at harmonizing the system itself.

3.     In China, the activities of a criminal defense lawyer are not meant to antagonize or confront the legislative power within the core part of the public authority.  On the contrary, these activities are meant to be in favor of the full implementation of the law and correct implementation of the will of National People’s Congress or its Standing Committee.  We often say that the law is the union of where the ruling party’s stands and the will of the people, therefore, when criminal defense lawyers provide a full defense for the defendant, then it is a manifestation of this unity.  On the other hand, efforts to undermine or hinder lawyers trying to fulfill their defensive responsibilities put themselves in opposition of the ruling party’s stance and the will of the people.  A minority of those shortsighted prosecution officials to act impulsively or to act upon instructions from the top to treat defense lawyers as an accomplice to the suspect or defendant to be remediated, because when they go before the court, both sides are in direct opposition to each other.  What the people cannot understand is how the county ruling party committee, municipal party committee secretary and even some higher-level officials stand with those unreasonable prosecutors whose conduct and speech hinder or suppress criminal defense lawyers from performing their duties.  Ultimately, that the behaviors of these officials are so unbearable is a result because I am afraid that this is greatly tied to a lack of understanding and agreement on the justice system.

4.     In the nature of criminal defense activities of lawyers does not have a confrontational relationship with jurisdiction authority, because one of the fundamental functions of lawyers performing their criminal defensive duties was to help the court, the judges, and those referring cases to comprehensively understand the facts of the case to be able to apply the law correctly.  Of course, this statement is based on the Chinese judicial system and the original intent of the legislation.  In judicial practice, when the court and judge hear a criminal case, abandoned their neutral position and thought of themselves as a member of the prosecution, and therefore to set themselves in opposition to the criminal defense lawyer and the defendant, is an entire matter entirely.  When such a situation occurs, we can only say that criminal justice system has already been damaged by the court and the judge’s lack of self-respect.

5.     The law set up the occupation of criminal defense lawyer and conferred upon lawyers to provide its clients with the legal help and trust to conduct the a sufficient defense in an institutional arrangement and pursuit of systemic functions, and does not involve the purification of morality and other irrelevant content.  Therefore, regardless of the case that a lawyer takes on, regardless of the ambition of the lawyer to earn money or fame, as long as they are in accordance with the law by providing legal help or mount an adequate defense for their clients, then we can help the system of law achieve reality.  Therefore, the frequent accusations against the motives of counsel are based on ignorance, silly, and in the question of the quality of the regime, a sign of poor form.  Of course, if these people are acting towards the fulfillment of some underhanded purpose, deliberately pretending to be the fool and catering to the viewpoints of the most backwards of citizens, then this is another situation entirely.

6.     Criminal defense lawyers are original group of lawyers, their practices and activities relate to the most basic human rights of everyone, therefore, to maintain the protection of the practice of the criminal defense lawyer is to safeguard the basic human rights of every citizen.  Recently I did a little research on the system of lawyers, studying the legal profession in ancient Greece and Rome, and discovered that what we term as lawyers were originally criminal lawyers and nothing else.  Moreover, personal liberty or personal was one of the fundamental rights of legal history to acquire constitutional concern.  Let’s consider constitutional law in the United Kingdom, the 13th Century Magna Carta and the later Habeas Corpus Act of 1679, consider the provisions of the American Constitution and Bill of Rights, and the later French produced Declaration of the Rights of Man and of the Citizen to protect the personal freedoms, we can easily discern that the Constitution and right of personal freedoms have had a far-reaching historical connection.

Every citizen has the potential to be a criminal suspect.  In a country that selectively handles cases and uses torture, every individual face the potential of imprisonment and torture.  Therefore, maintaining the right of criminal defense lawyers to practice is particularly crucial and significant to the protection of the personal freedoms and liberty of Chinese citizens.  The more protection afforded to the right of criminal defense lawyers to practice law, the more personal rights and freedoms of citizens are protected (even those individuals who want to curtail and even deprive the right of criminal defense lawyers to practice law); and vice versa.

7.     Civil and commercial law can only maintain general, small and medium-sized private rights, but the maintenance of fundamental significant private rights requires the help of criminal defense lawyers.  Of course, this statement is made on the context of lacking the constitutional litigation; if there is constitutional litigation, then it would depend on the work of constitutional and human rights lawyers.  However, this is something that would be more of an issue in the future.  I have expressed this view not to disparage civil lawyers or to raise up in an unprincipled fashion criminal defense lawyers, but to have a realistically balanced discussion.  We have seen that in some provincial level administrative regions that virtually all private entrepreneurs have been brought up on charges of connections with the mafia with almost all of them facing ruin, bankruptcy or death.  All of the once private big fortunes amounting to hundreds of millions or billions have been appropriated by the public authorities who do not only know how the funds were split, but also do not know who the funds were split to.  Facing this kind of situation, what can civil lawyers do?  Maybe criminal lawyers are able to do something about it, at the least according to the Constitution and legal provisions we can say that they are able to do so.  Of course, if a local public authority acts in a lawless fashion with both the Constitution and the law tossed aside, then there is no use for either the judge or the lawyers!

8.     Of China’s public authority organizations, the ones that should step forward to promote the practice of criminal defense lawyers should be the party organizations and people’s congresses at all levels.  The law of China is meant to unify the ruling party’s stances with the will of the people, the act of criminal defense lawyers performing their duties is to maintain and practice the party’s standpoints and the will of the people.  This is essentially what we’re talking about.  From the formal point of view, criminal defense lawyers performing their duties, acting alongside party organizations and people’s congresses at all levels, not like the antagonistic and confrontational relationship between criminal defense lawyers, police departments and procuratorates.  Therefore, the leaders of any one party organization and people’s congresses, as long as they are rational, will support a criminal defense lawyer performing their duties in accordance with the law.

9.     Whether in compliance with the Criminal Procedure Code or in the compliance with the lawyer’s code, in the pre-trial investigation stage, lawyers have the right to provide legal assistance and meet with their suspect clients.  The deprivation of counsel for suspects, the defendant’s right to legal access or the right of the defense to adequately perform their duties is a result of investigation departments violating the law and acting in contempt of the National People’s Congress and its Standing Committee.  I understand that in many parts of the country, public security organs still do everything possible and use all kinds of excuses in outrageously obstructing lawyers entrusted with providing legal assistance for suspects or obstructing lawyers from meeting with their clients during the investigation stage.  This kind of behavior on the part of public security organs is in violation of the law, in defiance of the highest organ of state power and nature, the legal profession and community and deserves to be exposed and criticized.  Events involving the fundamental rights of citizens and its protection must occur according to the provisions of the law, carrying out the will of the highest organ of state power and cannot be dependent on the final say of the public security organs.  Otherwise, we cannot talk about developing a country governed by the rule of law, but can only have a prolonged stay at the level of a police state or society.

10.  By sticking to the orientation of the legal profession and adhering to the law by providing clients with access to legal services, criminal defense lawyers will be able to gain increasingly widespread recognition and support from the community.  According to the existing lawyer code, China’s lawyers are “practitioners who provide legal services to their clients.”  This orientation is better than the historical consideration of lawyers as being part of the national or society legal staff and has basically the same content as modern countries governed by rule of law.  However, now when some public authorities attempt to violate the law, they try to transform the direction of the lawyer profession to that of “legal workers working in the system of socialism with Chinese characteristics.”  In essence, they are trying to turn lawyers from serving their clients to serving the state, serving politics and serving the public authorities.  For a criminal defense lawyer, this requirement would force them to cooperate with the prosecution to convict and sentence their client.  This kind of high-sounding, but regressive metamorphosis would lead criminal defense lawyers down a blind alley.  If they were to truly engage in such a practice, these lawyers would not only lose the people’s hearts, but they will also degenerate into accomplices in undermining the national criminal justice system.  Continuing to act in accordance of the law to help defend clients does not help the prosecution convict and sentence one’s own client and is the moral and legal basis for the survival and development of criminal defense lawyers.  With a solid foundation, there is no need to worry about a lack of social recognition or support.

11.  For lawyers, including criminal defense lawyers, to win over the public or the law, to gain broad support in the community requires making friends and an end to self-isolation.  Some of my lawyer friend start with “we have 160,000 lawyers” and end with “we have 200,000 lawyers.”  To be honest, in a country of almost 1.4 billion people, we require a minimum of 20 million lawyers.  More importantly, the talk of allowing lawyers to separate themselves from society, and separating themselves from others who know the law, is not very pleasant to the ear.  Lawyers have traditionally been considered as a freelancer, as a result their social impact is unlikely to be significant, and they want to exert their influence to cooperate with other sectors.

In the last few years, the development of China’s rule of law has faced a shock phenomenon in the struggles between the power abuse of certain public authorities and the societal requirements of the rule of law.  This is a feature of the life of Chinese law in the last several years.  On the one hand, the Constitution provides for the rule of law and the development of a country governed by rule of law.  This strategy is also affirmed by the Party Constitution with many people fighting for this goal.  On the other hand, some people, including some public figures of authority, use their authority to deny the rule of law, regress to the state of rule of man and abuse their power, especially in the advent of lawless circumstances in some places.  The situation in Beihai, Guangxi is an example of local authorities acting lawlessly.  As far as the Guangxi Autonomous Region as a whole, there has not been a serious undermining of the rule of law, but I do not know what the matter with Beihai is, that local authorities seem to act with such impunity.

The confrontation and struggle between the lawlessness of public authorities and the twin circumstances of the requirements of all levels of society for the rule of law and the building of a country governed by the rule of law have mainly been confined in the past two years to Chongqing.  Therefore, people have been more concerned with Chongqing.  I also wrote some articles (all of which stand in support of the Constitution and the central authorities) to evaluate the relevant events and issues and includes criticism of the handling of the issue.  As some of my friends have reminded me, if you say that you speak from the position of the Constitution and central authority to criticize them, and create a number of grudges, there will be a day when you are out of luck.  I often think that with the 90th anniversary of the founding of the Chinese Communist Party and the 100th anniversary of the Xinhai Revolution, whether it is the old democratic revolution or the new democratic revolution, there are many martyrs.  In order to establish a free and democratic rule of law in the new China, we should all not hesitate to shed our blood.  We speak now of freedom of democracy and the rule of law.  Although there are risks, the risks, after all, cannot be compared with the dangers and threats that these revolutionaries faced.  Moreover, our words are protected by the current Constitution, and we merely want to implement the proposal wherein the standpoints of the Chinese Communist Party and the will of the people are unified in the Constitution.  What crimes are we committing then?  With a Constitution that we can rely on, then there is no point of living if we do not dare as legal scholars to say a few words to maintain provisions of the Constitution.  In addition, we have no reason to believe that those we are critiquing are so intolerant.

By comparison, legal scholars contribute very little to the development of the rule of law and progress of the national legal system.  In comparison, we do less than lawyers.  The main reason perhaps is self-preservation.  There will always be risks, but we must trust that there are still some uses for the legal system that we are confident in the rule of law.  Speaking of dangers and threats, if we allow public authorities to rampage and allow the police to act lawlessly, then how will we protect the basic rights of life, liberty and property both now and in the future from threats?  Over the years, a lot of people and property have been transferred overseas with officials and businessmen placing their family and property overseas, all because of insecurity.  Without an independent legal system will result in a police state, creating an insecure environment for the citizens.  As a result, there will be a lack of confidence in the future of the country and citizens will do everything possible to move overseas.  This kind of situation plays out across China and is not unique to a geographic location or to a specific occupation.  The only difference is the ability or lack thereof to move overseas.  To curb this trend, we should proceed to establish an independent and impartial judicial system to curb lawlessness amongst public authorities by starting with the reform of the judicial system.

Over the years, lawyers and especially criminal defense lawyers have made the most cutting-edge contributions to the building of legal system and the establishment of the rule of law.  Chinese individuals who know the law can be divided into three groups.  The first group is the judges, the prosecutors and lastly those individuals involved in law society.  Even though this group is composed largely of civil servants, they speak and act in a contrary fashion to their status as civil servants which are understandable.  However there is still the matter of professional conscience.  Another group is the legal scholars.  These individuals work to maintain the rule of law and the special obligations of the rule of law and also have the ability to at times undermine and question the existing legal order.  However, due to an interest tradeoff, in fact, the majority of them do not come forward to directly maintain things that should be maintained.  But most of them do at times have differing thoughts and possess a conscience.  However, these people will not be the main force in building a country governed by the rule of law.  They can only bring enlightenment and cheer the effort on from the sidelines.  The third group is composed of lawyers.  Because of their occupational responsibilities, they are forced to stand at the forefront of the effort to uphold the rule of law and fight for the legal system.  This is especially the case for criminal defense lawyers.

The growth of the Chinese criminal defense lawyer has been substantial.  They take great risks.  Some of these individuals have sacrificed much, including going to prison, in order to ensure greater visibility for their work to prevent the regression back to the rule of man and promote progress in the development of governance by rule of law.  The contributions of these lawyers to develop governance by rule of law have primarily been concentrated in Chongqing.  Some of these cases, for example the Li Zhuang appeal, will not be easy to overturn.  This means that they have been able to effectively deter the resurgence of rule of man.  Even if it were the Li Zhuang case, their defense and speeches, as well as writings also effectively block the development of a lawless trend.  Of course, in this respect, a lot of individuals have played a positive role, including judges and prosecutors, legal scholars and a large number of onlookers, but the real pioneers in this respect have been the lawyers, especially the criminal defense lawyers.

In fact, the situation in China is often that of those who have taken the most risks in safeguarding the Constitution and the legal system that have contributed the most to development and progress of the rule of law.  Did we not say that being a criminal defense lawyer is very dangerous?  Yes, it is very dangerous.  However, this situation goes to show that in the present stage, their glory should be recognized foremost.  The glory granted them is one given by history, not some complimentary title or award, and of course is not something that can be taken away.  Their feats and performances are enough to fill the history of development of the rule of law and the history of legal construction in China.

In short, for the cause of creating rule of law in China, as well as for the basic rights, the society must show to lawyers and especially defense attorneys loyal to the law, unwavering support for their courage and achievements.

 (Pix (c) Larry Catá Backer)

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