Jerome A. Cohen. China’s Treatment of “Rights Lawyers”. SCMP (South China Morning Post)

July 9, 2009

In 1977 Victor H. Li published a stimulating book entitled “Law Without Lawyers”. China’s Communists, he suggested, because of their country’s distinctive tradition and culture, might blaze a new trail toward modernization, one that, unlike their former Soviet model, had little need for lawyers.

Yet Deng Xiaoping and his colleagues soon demonstrated that they thought otherwise. After Chairman Mao’s death ended the chaos of the Cultural Revolution, China’s new leaders altered the Soviet model for economic development, but resurrected its political-legal system, including its reliance on “socialist lawyers”. Indeed, during the past three decades, the post-Mao leadership has increasingly expanded the roles of lawyers to help settle disputes, promote the evolving “socialist market economy”, foster international business cooperation and legitimate the punishment of serious offenders.

In principle, contemporary Chinese lawyers are no longer Soviet-style “state legal workers” but independent professionals tasked with protecting citizens, including those at odds with the state. In fact, however, although their numbers, education and responsibilities have burgeoned, Chinese lawyers, like their Soviet predecessors, remain subject to significant restraints.

The Law on Lawyers amended in 2007 seemed to promise greater autonomy to human rights lawyers. Yet their plight has actually worsened in the twenty months since the 17th Communist Party Congress. The reconfirmed Hu Jintao-Wen Jiabao leadership placed veteran Party officials, without legal education or experience but with a strong police background, in charge of the Ministry of Justice and the courts as well as the Central Party Political-Legal Committee that instructs all legal institutions. These new appointees seem determined to eviscerate the country’s “rights lawyers”, who constitute a tiny fraction — perhaps one percent — of China’s almost 150,000 licensed lawyers.

Local officials under the Ministry of Justice, and the local lawyers associations they control, quietly press activist lawyers not to participate in a broad range of “sensitive” matters or at least to follow their “guidance”. Such cases include not only criminal prosecutions of alleged Tibetan or Uyghur “separatists”, democracy organizers and Falun Gong or “house church” worshippers, but also claims against government for many kinds of misconduct and corruption, birth control abuses and forced eviction and relocation.

Even civil cases involving land transactions, environmental controversies, labor disputes and compensation for tainted milk and earthquake victims are off limits or controlled. The refusal to allow famous lawyer Mo Shaoping to defend public intellectual Liu Xiaobo against criminal charges arising from Charter ’08’s call for political reform is only the best-known recent example of this interference.

Lawyers who fail to heed such “advice” suffer many sanctions. Their license to practice law is frequently suspended or, as in many current instances, their local lawyers association simply fails to give the endorsement required for annual license renewal. Their law firms are coerced to dismiss them or risk being closed, as some have been, and Party organizations within law firms have been reinforced.

Often, ex-lawyers who remain undeterred from assisting controversial clients are prosecuted and sent to prison by authorities who stretch the vague language of criminal law to cover their actions. Unfrocked Beijing lawyer Gao Zhisheng was convicted of “inciting subversion”. Former Shanghai lawyer Zheng Enchong served three years for “sending abroad state secrets”.  Shenzhen lawyer Liu Yao’s four-year sentence for “destroying property” was only reduced after an extraordinary petition from over 500 lawyers persuaded the authorities to end his 16-month detention.

In each case conviction means permanent disbarment and loss of livelihood. Moreover, even self-taught “barefoot lawyers”, who are not licensed but play an important role in the countryside, have been sent to long prison terms on trumped-up charges, as in the case of the courageous blindman, Chen Guangcheng.

Perhaps most troubling is the frequent, physical intimidation of “rights lawyers”. Today is the 155th day since the “disappearance” of Gao Zhisheng. His torture while previously detained makes many fear that he is now dead, although the Chinese Government ridiculously claims he is free on probation.

Many lawyers, while seeking to meet with clients, have been beaten by police and their thugs. The well-known professor/activist Teng Biao not only lost his license to practice law but also was kidnapped and threatened by police. I can testify from various personal experiences that many “rights lawyers” are closely monitored and restricted in their movements.

Since release from prison, Zheng Enchong’s life has been a nightmare of incessant summoning for questioning, illegal house arrest and casual police beatings, in addition to harassment of his wife and daughter. When six policemen barred me from visiting him and I asked for their legal authority, they merely kept repeating “We are police”. A sequel to Victor Li’s book might appropriately be entitled “Lawlessness Without Lawyers”.

An edited version of this text appears in English in the South China Morning Post (Hong Kong) for July 9, 2009.