By Stanley Lubman, The Wall Street Journal, China Real Time Report
Stanley Lubman, a long-time specialist on Chinese law, teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
The Chinese government’s heightened determination to discourage and intimidate lawyers from representing clients in cases deemed “sensitive,” or for speaking out on violations of human rights, has been on harsh display in recent weeks. The month of May was marked by several examples of tactics that the central and local governments have employed or condoned in recent years to pressure lawyers. Among these tactics have been abductions and beatings of lawyers, detention by police, pressure on law firms to stop taking cases, and permanent disbarment (For previous examples, see the 2009 annual report of the Congressional-Executive Commission on China, available here as a PDF.)
Two lawyers who represented a Falun Gong practitioner were recently disbarred for life for allegedly “disrupting courtroom order and interfering with regular litigation process” in the trial of their client. According to an AP report, cited here, on May 7 the Beijing Municipal Bureau of Justice posted separate notices on its website announcing that lawyers Tang Jitian and Liu Wei had lost their licenses to practice. “The notices said the pair had ‘disobeyed court personnel and disrupted order in the courtroom’ during an April 2009 trial at the Luzhou Municipal Intermediate People’s Court in Sichuan province. The lawyers say they were illegally videotaped during the trial, interrupted repeatedly by the judge and ordered out of the courtroom by unidentified men. “Tang and Liu eventually walked out of the courtroom after they objected to being videotaped — which is illegal in Chinese courtrooms — and the court descended into chaos.” The lawyers’ refutation of the disruption charge is available here.
A New York Times article on this disbarment proceeding reported that “Lawyers in China are usually barred from practicing for life only if they are convicted of a crime. If Mr. Tang and Ms. Liu have their licenses permanently revoked, then this would be a rare occasion, perhaps the first of its kind, when a disruption-of-court charge has led to such harsh punishment, said Eva Pils, a law professor at the Chinese University of Hong Kong.”
The “rights” lawyers have been targets in recent years not only for representing clients in lawsuits deemed to threaten “social stability,” but also for voicing vigorous opinions about violations of citizens’ rights In another recent example, a “rights” lawyer who has done both was clumsily silenced by Chinese authorities. Mo Shaoping, one of China’s leading human rights lawyers, was excluded from speaking (for a mere five minutes!) at a seminar on the role of criminal lawyers at Tsinghua University on May 19th in honor of Professor Jerome Cohen, a distinguished scholar of Chinese law and outspoken critic of human rights violations in China. Mo, according to a recent New York Times article, has represented “prominent political dissidents, journalists and even practitioners of the banned Falun Gong sect.”
The silencing of Mo underlines the heavy-handedness of the politicization of the legal profession that the Chinese government is willing to pursue in full view of the rest of the world. Whoever ordered the removal of Mo from the Tsinghua ceremony could not have done more to promote the cause of human rights lawyers and strengthen the opinions of foreign specialists on Chinese law who criticize the attempts to keep the legal system within rigid, politically-generated restraints.
China’s state-run Global Times, commenting on foreign press criticism of the silencing of Mo, has stated that it reflects “an upright moralist look that relies on stereotypes about China’s human rights status.” What this defensive and nationalistic barb overlooks is that the criticisms of the Chinese government for the acts mentioned above measures governmental action by a specific Chinese standard: Article 37 of the Law on Lawyers.
The statute merits scrutiny. It first states a general rule on lawyers’ immunity from punishment for their statements in court: “The personal rights of a lawyer in practicing law shall not be infringed upon.” At the same time, it also reflects government ambivalence about the right that is supposedly being protected, by adding a wide-open exception that can be arbitrarily exercised, as it has been in the recent disbarment case:
The representation or defense opinions presented in court by a lawyer shall not be subject to legal prosecution, however, except speeches compromising the national security, maliciously defaming others or seriously disrupting the court order.
It is clear from the disbarment case that the exceptions to the rule are so generally phrased that they can be easily applied to nullify the rule if policy dictates. The application of the rule in that case suggests that lawyers remain exposed to arbitrary restraints on their professional activities. The silencing of Mo Shaoping suggests that the same preoccupation with repressing threats to “social stability” that underlies the disbarment can extend to silencing lawyers’ public speech before it is uttered—even five minutes of it.