Former defence lawyer Li Zhuang's arrest in 2009 still has the legal community seething. Photo: NYT
Ng Tze Wei
Ng Tze Wei

Defence lawyers under threat

Lawyers want two controversial clauses which curtail their powers dropped from a judicial review, and question state legality as a result

Ng Tze Wei

Mainland authorities appear to be taking a step back on the reform path to support greater legal representation for the accused in criminal cases, a leaked Supreme People's Court document shows.

The draft SPC judicial interpretation of the controversial Criminal Procedure Law (CPL) amendments, which was passed in March and is due to come into effect in January, was leaked last month. At stake are two clauses buried in the lengthy document that reflect a stubborn and worrying official belief that defence lawyers are trouble makers. Rather than allow greater protection for defence lawyers, the controversial clauses - No 249 and No 250 - provide the courts with even more tools to control them.

The first clause says that lawyers must now obtain approval from the court to bring laptop or tablet computers into the court room, and must not use them for voice or video recording, photographing, or to report about court proceedings through e-mails or microblogs.

The second stipulates that any defence lawyer deemed to have "seriously disrupted courtroom order" - which will likely include behaviour mentioned in the preceding clause - can be banned for between six months and a year. The court can even ask the judicial department to suspend or revoke the lawyer's licence.

News of the two clauses has sparked an uproar in the mainland legal community, still seething over the arrest of defence lawyer Li Zhuang during the notorious anti-triad campaign in Chongqing in late 2009. Many lawyers have demanded that the clauses be scrapped - with at least two National People's Congress members who are lawyers themselves petitioning the country's supreme legislative body to step in.

Their criticisms centre on two points - whether it is procedurally legal to introduce such powers through a judicial interpretation, and whether the powers themselves are legal.

Regarding the first point, critics say the clauses give the courts new powers which, under the country's constitution, could only be created by the legislature, and not sneaked in though a judicial interpretation that is not subject to public discussion.

Moreover, mainland courts already have powers to discipline lawyers for "disrupting court order". Offending lawyers can be fined, ordered to leave the courtroom or even detained under the Criminal Procedure Law. There is no persuasive basis for courts to add a new rule to revoke a lawyer's licence other than to threaten lawyers with the ultimate punishment available.

Secondly, critics say the content of the two clauses confirms a lingering official resentment towards lawyers that will only prolong the imbalance between the state and individuals in the mainland's criminal justice system.

While China now embraces an increasingly adversarial model in its courts, judges still see their main priority as serving the interest of the state, and the international legal principle of presumption of innocence is still not fully accepted by the mainland criminal justice system.

Defence lawyers still face major obstacles in carrying out their work, from meeting clients to obtaining prosecutors' files and collecting evidence. They can also be charged with perjury if defendants or witnesses change their testimonies.

The two clauses read together mean that a court can now consider a lawyer's use of social media to report about a court's proceedings as a "serious disruption of court order".

Over the past two years, in cases considered sensitive by local authorities, mainland lawyers and journalists have turned to social media to provide near real-time comments about trials under way. Lawyers often discuss details of a court hearing, expose the judge's or prosecutor's "misbehaviour" - and even their own defence strategies. They argue that this is to enhance trial transparency, and that as long as their actions do not affect courtroom order, they should be allowed. Courts naturally regard this as taking matters out of their control.

Some supporters of the revisions argue that a judge should be allowed to maintain order in his court, and that many other jurisdictions including Hong Kong impose strict rules on how lawyers and journalists report cases in progress. But these restrictions are to ensure a fair trial and protect privacy in certain cases, such as cases involving minors.

It is no secret that mainland judges often act on official orders, especially in "sensitive cases". Therefore, the current controversy is less about judges versus lawyers, but authorities' obsession with maintaining stability and their belief that lawyers undermine the state's work.

Authorities, however, fail to see that the legitimacy of the courts is the key to this social stability, and that lawyers are key to this legitimacy, since they are the only outside force able to balance power between the state and individuals.

This article appeared in the South China Morning Post print edition as: Defence lawyers under threat