Op-Eds


Lawyers’ New Party Loyalty Oath: A Sign of Weakness

By Stanley Lubman, The Wall Street Journal

The Chinese Communist Party (CCP) continues to tighten its grasp on the legal profession with Ministry of Justice (MOJ) announcing that every new Chinese lawyer must now swear an oath of allegiance to the party. The oath is yet another ominous step in a continuing campaign in recent years to restrain lawyers from representing clients seen as challenging Party rule. It should be interpreted as an expression of anxiety rather than a sign of strength.

The oath’s dominant themes are clearly stated at the outset:

“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a legal worker under socialism with Chinese characteristics; to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law.” (This is a slightly altered version of a translation provided by human rights researcher Joshua Rosenzweig; the original Chinese is available as a pdf here.)

Formerly, newly admitted lawyers had to swear before local lawyers’ associations to protect the law, the Constitution and clients’ rights, and to follow lawyers’ professional ethics. That oath was not very different from those required by various American states, in which newly admitted lawyers swear to support the constitutions of the U.S. and the state in which they are being admitted and to behave ethically.

The new oath contains similar principles after the portion quoted above, obligating the lawyers “to practice on behalf of the people; to be diligent, professional honest and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice.” It closes, however, with a promise “to diligently strive for the cause of socialism with Chinese characteristics.”

The new Chinese oath places heavy emphasis on the CCP and its policies (“socialism” is mentioned three times, and “Chinese characteristics” twice). It is consistent with the slogan of the “three supremes” that President Hu Jintao proclaimed in 2007 as the policy that should dominate the application of law, namely giving priority to “the Party’s cause, the people’s interest, and the Constitution and laws.” Since then, obedience to the CCP has been given precedence over the “the people” and the Constitution, and since 2008 the MOJ has promoted the creation of more Party cells within law firms. As Elizabeth Lynch, a close observer of Chinese legal policies has noted, an MOJ opinion in 2010 on lawyers’ activities “candidly states the role that the Party will play in leading the legal profession.”

But why underline Party supremacy now, given the consistency and aggressiveness of Party policy since 2007?

Another long-time expert on Chinese law, Professor Donald Clarke, has suggested that what the oath really shows is “the complete bankruptcy of the imaginative faculties of those in charge of keeping society in line.” Clarke is dubious that the oath will make a difference to outspoken lawyers who have been undeterred from speaking their minds despite earlier oaths and policies.

A few Chinese lawyers have already publicly criticized the new oath. Mo Shaoping, a prominent human rights lawyer, has been quoted as saying that the oath is “inappropriate….As a lawyer you should only pay attention to the law and be faithful to your client.”

Certainly the oath adds no new element to existing policies, but it might be a sign that the MOJ and its superiors feel that the threat of more support for increasing legality has grown among lawyers and rights-conscious ordinary citizens. In other words, it may signal policy-makers’ intensified apprehension about growing pressure for strengthening the rule of law in China.

That policy makers may be acting more out of a sense of weakness than of strength was manifested last year when government authorities, apparently fearing the growth of an Arab-style protest movement, suspended or revoked some lawyers’ licenses and detained others to prevent them from taking sensitive cases, such as those involving dissidents or government critics.

The new oath may also be intended to reinforce support for the change in leadership that will soon occur, particularly as speculation spreads about a breakdown in party unity tied to the recent purging of populist Chongqing party chief Bo Xilai.

Regardless of the motive for requiring the new oath, it could inhibit lawyers from representing clients whom Party-state officials could regard as threats to social stability or to Party dominance: Suppose a powerful state-owned enterprise is involved in a civil suit against a foreign-controlled joint venture or wholly foreign owned enterprise, and fiercely alleges that the defendant is trying to destroy the Chinese enterprise and thereby cause damage to the Chinese economy. Might lawyers think twice about taking on the foreign client for fear of being accused of threatening “socialism with Chinese characteristics?”

The reach and impact of the oath have yet to be ascertained. It applies to new lawyers and those who are re-applying for their licenses; the MOJ’s announcement does not mention its applicability to current lawyers when they make their mandatory yearly re-registration.

Symbolic or not, behind the oath are policies that bode ill for the future of the rule of law. 3/26/2012