Until clause goes, defence lawyers are just decoration
The detention of four lawyers in Guangxi last month for allegedly fabricating evidence in an assault case has left mainland legal circles deeply shaken, and once again drawn attention to the notorious clause 306 of the Chinese Criminal Code, which targets lawyers for false testimony given by witnesses and defendants.
Dubbed the 'Sword of Damocles' as it hangs above their heads when carrying out defence work, mainland lawyers say clause 306 aggravates the imbalance of power between prosecutors and lawyers, and is the main culprit behind the fall in the number of defence counsel because it makes defence work far too risky.
One doesn't have to go back too far for a famous case, that of Li Zhuang, who was arrested and subsequently convicted under clause 306 in 2010 while defending a Chongqing crime boss, and prosecuted again this year under the same clause over a different case. But for all lawyers representing different defendants in the same case to fall under the sword is a first. It points to an increasingly challenging work environment for defence lawyers on the mainland.
In the early hours of November 14, 2009, young people from two villages, known as P and H, got into a fight after drinking in central Beihai, Guangxi. Three days later Huang Huanhai, from village H, was found dead at a pier two kilometres away. Four men from village P who took part in the fight were arrested and charged with assault. During police interrogation they confessed to abducting Huang and beating him to death at the pier.
At the trial, in September last year, the four Guangxi lawyers found three witnesses who testified that the four men had not gone to the pier that night. The four defendants also withdrew their confessions, with one claiming to have been tortured during interrogation. The trial was halted, and the three witnesses were soon arrested for fabricating evidence. Then, in the middle of last month, the four lawyers were also detained for fabricating evidence.
One, veteran rights lawyer Yang Zaixin, has now been formally arrested, with the three others released on bail - all three have maintained a worrying silence and refused to meet their lawyers.
Clause 306 reads: 'Any defence counsel or agent who destroys or fabricates evidence, or helps a client destroy or fabricate evidence, or threatens or entices a witness to change their testimony or give false testimony ... may be subject to imprisonment of up to seven years.'
While a lawyer engaging in the above activities would have broken the law in many jurisdictions, China is unique in having a special clause targeting lawyers, as opposed to police or prosecutors.
Meeting witnesses to collect evidence or advising a defendant on defence strategy is standard work for defence counsel in other jurisdictions. But in China, clause 306 means that a lawyer can be thrown into jail for coaching and fabricating evidence if such activities lead to defendants or witnesses giving an account of events that differs from what they told police.
In particular, the term 'entice' has been criticised for being vague; anything from winking at the defendant or advising a defendant that a confession obtained through torture should not be accepted in court have amounted to enticement.
As a result, clause 306 has led to so-called passive defence strategies, where lawyers avoid collecting evidence or questioning the validity of a confession, even though many are allegedly still obtained through torture.
An All China Lawyers' Association officer, who asked not to be named, said in the 10 years after the clause was introduced in 1997 at least 200 lawyers had been detained under clause 306. At least half were proven innocent or not prosecuted, but those convicted faced jail terms and were disbarred for life.
Clause 306 has become a major disincentive for lawyers to engage in defence work, with only three in 10 defendants in criminal cases having representation. In Beijing, the average annual number of criminal cases taken up by a lawyer dropped from 2.64 in 1990 to 0.78 in 2000. As in Li's second trial, The mainland's legal community sees the use of clause 306 in the Guangxi lawyers' case as amounting to an 'assault' on the profession and a severe threat to the rule of law. They have united to defend their colleagues.
Six lawyers from Beijing, Shandong and Yunnan have flown to Beihai hoping to offer defence, while a bigger pool of lawyers remains on standby. The six lawyers have been microblogging every step of the process and have also put all case materials that can be disclosed online and called on other lawyers to follow the case and help with the defence.
As one key supporting lawyer, Yang Jinzhu from Hunan, puts it, 'apart from the law and the support of internet users, we lawyers have no other weapons, while the state powers have all the weapons they want.'
But this is more than a battle between defence lawyers on one hand and prosecutors and police on the other. This is about ensuring a fair and healthy judicial system where justice is achieved through prosecutors and defence each playing equal roles.
If lawyers can only work with their hands tied, or are expected not to challenge a prosecutor's case, what is the point of having defence lawyers - apart from decoration?
Clause 306 of the Criminal Code needs to be abolished to protect defence lawyers' rights and those of their clients. But since proposals to abolish it were not accepted in the latest round of amendments to the Criminal Code last year, this is unlikely to happen soon.
The best hope now lies in the amendments to the Criminal Procedure Law due to be introduced by the end of the year, where changes could still be made to minimise damage caused by clause 306. Hopefully the legal community's calls will be heeded this time.