China needs its human rights lawyers to fortify its rule of law

Zhou Zunyou says China is flouting its own legal standards in its sweeping detention of rights lawyers

PUBLISHED : Monday, 27 July, 2015, 5:49pm
UPDATED : Tuesday, 28 July, 2015, 9:30am

In an unprecedented crackdown starting from July 9, Chinese authorities interrogated and detained more than 200 human rights lawyers and activists, attracting condemnation worldwide. While most of these people have been released, around 20 remain in custody, including five lawyers and an administrative assistant at the Beijing-based Fengrui Law Firm, which has been the focus of the crackdown.

Shortly after the action, China's state-run news media launched a smear campaign, characterising the targeted individuals as "a major criminal gang" and accusing them of exploiting contentious cases to stoke controversy, discrediting the government and severely disrupting the public order. Some of the detainees, including Fengrui's director, Zhou Shifeng, have been shown on television making confessions.

When a few UN human rights experts spoke out to urge the central government to "stop what appears to be targeted police harassment and intimidation of lawyers", Chinese official media argued that the crackdown "is nothing more than a legitimate law enforcement action, and should not be interpreted as a human rights issue".

If China truly wants to convince the world that this campaign is not "a human rights issue", the prosecutors will have to prove beyond a reasonable doubt that the apprehended lawyers have broken criminal law. For the time being, it is key for China, during the pretrial period, to adhere to its own criminal procedure law and show respect for widely recognised international standards of criminal justice.

However, the fact is, even before trials begin, the state media have pronounced these people guilty; since their detentions, none of the Fengrui suspects have had any - let alone immediate and adequate - access to their own lawyers.

The conducting of a "trial by state media" prompted the criticism of He Weifang, a prominent law professor at Peking University, for violating the presumption of innocence, a central principle of criminal procedure as guaranteed by Article 12 of the Criminal Procedure Law. In one of his recent posts on Sina Weibo, a Twitter-style microblogging service, he pointed out that the state- and party-controlled media has the duty to abide by the law, and that taking sides by playing up and sensationalising the guilt of people before their trials begin would make it impossible for the court to adjudicate the case impartially.

Many days after the detention of Zhou and the smear propaganda against him, his family has not been contacted by the authorities. When Yang Jinzhu stood up as Zhou's defence lawyer, he was warned and threatened by the authorities several times. Viewed as a "fight-to-the-death lawyer" by his peers, Yang himself is also a target of the crackdown.

According to Article 83 of the Criminal Procedure Law, investigators must notify family members of the detainee within 24 hours after detention. An exception to the notification rule is allowed only if the family members cannot be contacted, or if crimes endangering national security or crimes of terrorism are suspected and the notification may impede the investigation.

A possible reason for denying notification is that Zhou's detention involves charges of "endangering national security". However, state media reports on the case only mention charges of "disturbing the public order", with no trace of accusations related to national security.

Apart from the Fengrui detainees, lawyers Sui Muqing, Xie Yang and activist Gou Hongguo have been placed under "residential surveillance" on charges of endangering national security. Their whereabouts remain unknown.

According to Article 73 of the Criminal Procedure Law, in cases of crimes endangering national security, crimes of terrorism and particularly serious crimes of bribery, the police may apply "residential surveillance" in an undesignated place. If they do so, police investigators may refrain from disclosing the reasons for the detention and the whereabouts of the detainee, and defence lawyers must obtain prior permission from the police to meet their clients.

In essence, the police are allowed to hold people in an unknown location for up to six months without access to their lawyers and family members.

Under the International Covenant on Civil and Political Rights, which China has signed but not ratified, detainees have two rights: the right to be informed promptly of the reasons for their detention; and to be provided with adequate time and facilities to prepare for their defence, which includes communicating with counsel of their own choosing. It is clear that articles 83 and 73 are far from being compatible with these minimum international standards.

Lawyers are an indispensable force for securing the rule of law, a goal that is being pursued by the Communist Party, and they should never suffer persecution or any other kind of sanctions for discharging their professional duties.

The irony of the crackdown is that the detained lawyers, whose job is to fight hard to help other people, are sitting in cells themselves without access to their own defence counsels. Even if the detained lawyers have committed crimes, the criminal proceedings against them must also be lawful, justified and in line with international standards.

Dr Zhou Zunyou is head of the China section at Germany's Max Planck Institute for Foreign and International Criminal Law, and the author of Balancing Security and Liberty: Counter-Terrorism Legislation in Germany and China