Intimidation Overshadows Reforms to Law on Lawyers
(New York) - Two prominent Chinese lawyers who offered to represent Tibetans face the loss of their professional licenses as part of a recent drive to threaten lawyers and law firms, Human Rights Watch said today. The government’s unprecedented efforts to intimidate firms into refusing politically sensitive cases reflects the vulnerability of the legal profession, and overshadows the June 1, 2008, enactment of revisions to the Law on Lawyers, which is supposed to establish new procedural protections for lawyers.
The Beijing Judicial Bureau has to date refused to renew the professional licenses of Teng Biao and Jiang Tianyong, two lawyers with distinguished records of defending civil and human rights cases. The deadline for renewal is May 31. The move followed a weeks-long delay by the bureau to complete the annual registration of more than a dozen law firms, many of which employ lawyers who have been involved in what the government deems to be “sensitive cases.” Some lawyers have privately denounced the bureau’s actions as “large-scale blackmail,” designed to deter law firms from getting involved in cases that may be embarrassing to the government.
“Beijing is trying to intimidate the legal profession by suspending these two lawyers and threatening not to renew many licenses,” said Sophie Richardson, Asia advocacy director at Human Rights Watch. “The goals are to deter lawyers from representing human rights cases, and to deter firms from employing lawyers who want those cases.”
In early April, following the government’s announcement that several hundred Tibetans had been taken into custody for their role in the March protests in Lhasa, a group of 18 prominent civil rights lawyers issued an open letter offering to provide legal assistance to the detainees. “As professional lawyers, we hope that the relevant authorities will handle Tibetan detainees strictly in accordance with the constitution, the laws and due process for criminal defendants,” the letter said. “We hope that they will prevent coerced confessions, respect judicial independence and show respect for the law.”
The Ministry of Justice, which has authority over lawyers and bar associations and controls their professional licenses through a system of annual renewal, immediately responded by threatening the letter’s signatories and their respective law firms with disciplinary sanctions and holding up the renewal of their professional licenses. Beijing judicial authorities summoned individual lawyers and heads of law firms, told them the Tibetan protesters were not “ordinary cases but sensitive cases,” and asked law firms to dissociate themselves from the individual signatories or to terminate their employment.
Several law firms where notified in writing by the judicial authorities why their registration was being delayed: “The lawyers from your law firm are involved in representing some sensitive cases, therefore, the annual inspection and registration of your firms will be temporarily postponed,” the notification said. A number of lawyers were also warned by national security personnel against accepting retainers from relatives of Tibetan defendants. The Beijing Bar Association, which like other Chinese bar associations remains controlled by the local judicial authorities, also warned heads of law firms of possible disciplinary sanctions. The head of the Beijing Bar also accused the lawyers of having provided support to the “Dalai Lama clique.”
In a second open letter published on May 24, a week before the registration deadline, the signatories of the original appeal explained the motives behind their offer to defend Tibetans, and rejected the view that equated their offer of legal services with a proof of support for Tibetan separatism ideas (which constitutes a state security crime under Chinese law).
“To provide legal defense to criminal suspects and defendants is the function of a lawyer. It is an important component of the rule of law, and to defend them is not equivalent to agreeing to their position or actions,” the signatories wrote. “We could not imagine that issuing this appeal would result in such tremendous pressure and impact the yearly renewal of professional licenses.”
The authors also stressed that deeming cases “politically sensitive” and therefore denying due process conflicts with the rule of law: “…progress [towards the rule of law] lies precisely in these so-called politically sensitive cases. The more openly they are handled, the most visible the progress. As the world has its eyes on China, hastily trying defendants without allowing them their choice of counsel will only damage the image of legalism in China,” they wrote.
In late April, under instructions by the party secretary of the Tibetan Autonomous Region to proceed to “quick prosecutions and sentencing,” a court in Lhasa had summarily sentenced the only group of Tibetan defendants known to have been prosecuted so far. The defendants had been tried covertly in the preceding weeks without the benefits of choosing their legal counsel.
In addition, the June 1 revisions of the Law on Lawyers are being gutted before they are promulgated, leaving the legal profession as vulnerable as ever. The revisions, adopted in October 2007, were initially designed to address the problem of widespread difficulties met by lawyers when they try to exercise key procedural rights such as meeting their clients in custody, gaining access to evidence and court documents, or independently collecting material and testimonies for the defense.
But the revisions fall far short of the expectations of the legal profession, and of the minimum standards for justice prescribed under international law, such as the UN’s Basic Principles on the Role of Lawyers, which China has endorsed. Bar associations still have virtually no autonomy from the Ministry of Justice. A new clause that lawyers’ court statements not “endanger state security” limits their immunity. And article 306 of the Criminal Law, which is frequently used to prosecute lawyers in sensitive cases for perjury if their clients or witnesses retract or alter statements collected by the police or the prosecution, remains unchanged.
Chinese lawyers are also thwarted by law enforcement and judicial institutions that deny the lawyers’ rights. For example, the right to access clients in detention, which was supposed to have been significantly improved by removing a widely abused clause allowing the police or the prosecution to deny client-attorney meetings “if the case involves state secrets” has been effectively nullified by an announcement by the Supreme People’s Procuratorate (the public prosecutor) that such restrictions will still be imposed, no matter what the revised Law on Lawyers stipulates. On April 30, Zhang Geng, deputy procurator general, told the state-run China Daily, “If the suspect’s request is refused, prosecutors must inform detention centers of the refusal, and the suspect will not be allowed to meet a lawyer.”
Human Rights Watch has extensively documented abuses of lawyers, widespread violations of the right of the defense in legal procedures, and a pattern of interference and political control, especially in cases viewed as politically sensitive by the authorities.
“Chinese lawyers should be able to work without fear of interference or retaliation,” said Richardson. “Until the legal profession is truly independent, legislative fixes will remain mostly cosmetic.”
Human Rights Watch said that no lawyer should be denied renewal of registration on the basis of the cases he has represented or is representing, and called on the Chinese government to use the occasion of the promulgation of the revised Law on Lawyers on June 1 to publicly guarantee that lawyers’ annual registration would not be subjected to political considerations or other arbitrary factors.
“Curbs on lawyers defeat the goal of justice, and only undermine legal reforms,” said Richardson. “This is a high price to pay for short-term political expediency.”