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BY ZHANG AINING
--An analytical review of the new Law on Lawyers
Zhang Aining, associate professor at the International Law Department of China Foreign Affairs University
Power balance is a systematic framework that facilitates the forming and existence of rule of law and is also a direct precondition for the forming and existence of rule of law. It is designed for restriction of the State power, and it is also for those who have the administrative power to use their power for safeguarding the social justice. The lawyers?right to practice is an important part of social balance mechanism and is also an internationally accepted form. The essence is an extension and an indispensable part of citizens' rights. Therefore, to guarantee lawyers?right to practice is to safeguard human rights.
A problem that has long troubled the circles of lawyers in China is the difficulty for some of them to practice. Some experts sum up the difficulties as follows: It is difficult for lawyers to meet suspects, review the materials, collect evidence relating to a case, advance materials and opinions proving the innocence of a defendant, and guarantee their right to perform their duties. Among the difficulties, the first three are the most prominent. The fundamental reason for this situation is the deep-rooted bias and repulsion against lawyers in the Chinese law system. The imbalance between lawyers?right and duties is also reflected in the current Law of the People's Republic of China on Lawyers. Meanwhile, less attention given to or restriction on lawyers is also reflected in the Criminal Law and Criminal Procedure Law. The Chinese law system lacks the guarantee of the rights of practicing lawyers. As a result, fewer lawyers attend to court, the rights of parties concerned cannot be safeguarded, and it is difficult to achieve social equity and justice.
As the concept of respecting and protecting human rights becomes increasingly popular and with the progress of judicial reforms, the public, especially the circles of lawyers, have focused on the problem of guaranteeing the rights of practicing lawyers. On October 28, 2007, the revised Law of the People's Republic of China on Lawyers was adopted at the 30th meeting of the Standing Committee of the Tenth National People's Congress. The new law will come into force on June 1, 2008. The amendment is of great significance for the protection of human rights, and has made breakthroughs in following three aspects: Firstly, to solve the issue "lawyers have difficulties in meeting with defendants, reviewing materials and collecting evidence," the amendment makes provisions that are more concrete and operable. Secondly, lawyers are conditionally given the immunity to remark, inform and testify at court. Thirdly, it enhances the safeguard of personal rights of the lawyers involved in litigation.
No Approval for Lawyers' Meetings with Suspects
Criminal litigation is a confrontation between individual citizens and the State machine. Facing the powerful State machine and trained judicial personnel, criminal suspects who know little about laws and their own rights are weak in protecting themselves. Therefore, it is crucial for them to meet lawyers as soon as possible. Before the law on lawyers was amended, although the investigative organs did not block lawyers at the door, they inclined to restrict them in a disguised way, hence the "difficulties for lawyers to meet defendants." Article 96 of the Criminal Procedure Law stipulates that except for a case relating to the state secrets, lawyers can accept the mandate of suspects to serve as legal advisers and their representatives in litigation, to act on their behalf to make petitions or complaints, to meet suspects in custody at any moment, after suspects are inquired by investigative organs for the first time or from the day when the investigative organs take mandatory measures against suspects. But in practice, some investigative organs unlimitedly extend the scope of "state secrets" and set various restrictions on ways, time and number of the lawyers's meetings with suspects. Now Article 33 of the revised Law on Lawyers provides that from the day on which the investigative organs address the first inquiry to the suspects or take mandatory measures against the suspects, the lawyers carrying with them the lawyers' licenses, law firms' certificates and mandates or official law assistance letters have the right to meet suspects. When lawyers meet and correspond to suspects or defendants, they should not be scouted. This stipulation has made a major breakthrough, which indicates the following points:
Firstly, lawyers carrying the "three certificates" can meet and correspond to suspects without approval, even if the case relating to the "state secrets." The wording of "may" in the old version of the law has been changed into the statement that "lawyers have the right to." Thus it recognizes the lawful rights of lawyers to meet and correspond to suspects or defendants. Since it is a "right," it should be protected and not be infringed upon.
Secondly, when lawyers meet suspects or defendants, they should not be scouted. In international practice, law enforcement personnel can see the meetings between lawyers and defendants but cannot hear what they talk. Yet Article 96 of China's Criminal Procedure Law stipulates that when lawyers meet and correspond to suspects in custody, investigative organs may, if necessary, have personnel present at the scene according to the situation of a case. So, when lawyers meet and correspond to suspects, they are usually scouted by law enforcement personnel. A famous lawyer once told me a story: When he met a suspect, four policemen stood behind the suspect so that he dared not to speak a word. The suspect even said that the lawyer was appointed and sent by the public security organ. Under such pressure, lawyers could not but pretend to be the suspects "family members" and just paid a visit to him. In this way, the stipulation that lawyers are to be involved in collecting evidence and consult suspects in the initial stage become only nominal. In fact, it is a high time for lawyers to tell suspects how to protect themselves, for instance, suspects have the right not to sign on the notes that are not their words. According to the revised Law on Lawyers, the protection of lawyers?right to meet suspects is obviously enhanced, which is of more significance in practice. Lawyers not only can collect more first-hand materials and get more evidence favorable to suspects, but also may avoid the occurrence of extorting a confession by torture. In the past, some investigative organs depended excessively on confession, while paying less attention to material evidence, which resulted in frequent occurrences of extorting a confession by torture. In the future, public prosecutors should pay more attention to facts and manage to collect other evidence besides confession. They should not only collect evidence that proves suspects' crimes, but also gather evidence that proves innocence of suspects. In the meantime, all evidence should be in accordance with the law, and public prosecutors should pay special attention to protection of human rights while punishing criminals.
Scope of Rights to Review and Copy Documents
It is an important right for defenders to get evidence held by prosecuting party so as to carry out effective defense. Defendants should be informed of evidence that accuses him or her of a crime, which is the core principle of natural justice in history. At current stage in China, prosecuting organs have evidence that accuses suspects of crime before a trial, but defenders usually have no information about it. According to Article 36 of the Criminal Procedure Law, at the stage of investigation and accusation, defenders can read, make extracts of and copy "accusation letters and technical testimonials." But in practice, prosecuting organs only provide lawyers with a copy of "accusation opinions," and lawyers are not allowed to review documents and copy documents relating to a case. As lawyers could not read the documents, naturally they could not get all the materials held by prosecuting organs. Hence they could not carry out effective defense for suspects.
According to the second section Article 36 of the Criminal Procedure Law, at the trial stage lawyers may review, make extracts of and copy the documents relating to criminal offences. But there are no clear stipulations as to which departments lawyers should go to review these documents. In judicial practice, prosecuting organs should submit accusation letters, name list of witnesses, evidence list, and copies of major evidence to the court. So lawyers can only review, make extracts of and copy the abovementioned materials at the court. At the stage of investigation and accusation, lawyers could not access to the materials relating to crimes, and at the trial stage, they could only access to limited evidence. Actually prosecuting organs monopolized all the information, which made them more effective to accuse suspects of crimes, thus a superior position. The practice restricts defendants's and defenders's access to the information, weakens the confrontation of litigation, and widens the imbalance between the accusers and the accused. In this case, wrong accusations are likely, which may give rise to wrong verdicts during trials.
The revised Law on Lawyers makes breakthrough in this regard. Article 34 stipulates that lawyers who accept the mandate of suspects have the right to review, make extracts of and copy accusation letters and documents relating to a case from the day on which the investigation and accusation begin. The lawyers have the right to review, make extracts of and copy all the materials relating to a case from the day on which the people's court begins to handle the case. This means that lawyers have a wider scope to review documents and they need no approval. Lawyers will get more evidence, while prosecuting organs may listen to lawyers's opinions in a more extensive way.
Investigation and Collection of Evidence Need no Approval
Defenders' rights to investigation and collection of evidence are of great importance, which will guarantee the judicial justice and avoid wrong verdicts. Research and analysis on police investigation work show that once police believe one suspect commit a crime, they would have a tendency: To only collect evidence that would prove the crimes of the suspect while neglecting other assumptions, and not to carry out investigations on these assumptions. The debate system means to provide the defendants with opportunities to remove the unfavorable accusation of the State organs against them and to affect the movement direction of procedure. To achieve this aim, suspects or defendants should urge the court to investigate the facts and evidence in their favor, which requires in the meantime that lawyers have the rights to investigate and collect evidence. If the accusers investigate the case for the purpose to prove that suspects commit crimes so as to lay bare the truth of the case, the defendants should collect the evidence that would prove suspects are innocent, minor guilty, or should be given lenient punishment.
Along with the reform of court trial, defenders have increasingly become neutral and arbitral. If defenders have not enough evidence, their opinions can hardly be accepted by court. In lawyers's practice, the most difficult thing is to gain the rights to collect evidence, but the judicial organs have mandatory rights to collect evidence. Article 31 of the previous Law on Lawyers stipulates that when lawyers handle legal affairs, they may conduct investigation after they are approved by relevant departments or individuals. The stipulation means that lawyers?rights to collect evidence lies on the approval of relevant departments or individuals for investigation. In practice, however, lawyers could hardly get the consent from relevant departments or individuals, so that the stipulation in the Law on Lawyers is virtually a paper service. The Criminal Procedure Law stipulates similarly that lawyers who collect evidence on their own should first of all need the approval of relevant departments or individuals. What's more, if lawyers collect evidence from victims, their family members, or witnesses designated by victims, they should get the approval of the individuals and judicial organs, or "dual approval" (Article 37). Lawyers's rights to investigate and collect evidence are not only restricted by witnesses, but also by the accusers and judgment party.
On contrast, the first section of Article 45 of the law stipulates that the people's courts, the people's procuratorates and the public security organs have the rights to investigate and collect evidence from the relevant departments or individuals, while the relevant departments or individuals should provide evidence according to facts. Investigation and collection of evidence are obviously inclined to judicial organs, not to lawyers, which means discrimination that obviously widens imbalance between the accusers and the accused, and it is unfair for the defendants. Unfairness in procedure naturally results in injustice in practice.
The revised law, however, is quite different. It stipulates that except that lawyers who accept mandate of suspects may, according to the situation of a case, apply for the people's courts or the people's procuratorates to collect or transfer evidence, or apply for the people's courts to inform witnesses to be present at the court. Lawyers who make investigation on their own may also ask the relevant departments or individuals for investigation on the condition that they have lawyers "licenses and law firms" testimonials. It is evidently a major breakthrough in contrast with the previous stipulations.
Lawyers Are Given Immunity of Practice
It is crucial for lawyers to be given immunity of practice. In the past, things like this happened: The moment they made remarks disliked by the accusers, the lawyers were taken away by procurators. Since the Criminal Procedure Law was revised in 1997, dozens of lawyers have been accused of guilty just because of their defense. Criminal defense had been once regarded as a cradle for lawyers to become famous, but now it is a risky occupation or called as "mine field" by lawyers.
Although Article 32 of the previous Law on Lawyers stipulates that in practice, a lawyer's personal rights shall not be violated, it is too general to be operable. The law that is designed to protect a lawyer's right of the person should focus on guarding against professional revenge on lawyers by working staff of the State in the name of the state, and should also, on procedure, focus on the restriction over the investigative behaviors done by the State organs (mainly investigative organs and procuratorates) which might infringe upon a lawyer's right of the person.
The revised Law on Lawyers not only stipulates in principle that when a lawyer acts as agent ad litem or defend clients, his right to argue or present a defense shall be protected in accordance with the law (Article 36) and a lawyer's right of the person shall not be violated in his operation, except for the remarks that endanger the state security, spitefully defame others and seriously disturb the order of court. According to this, Chinese lawyers conditionally gain the immunity in their practice. This stipulation is also a milestone in safeguarding the lawyers?right to practice and a big progress in concept.
Concluding Remarks
The revised Law on Lawyers pays unprecedented attention to lawyers' right to practice, which is a necessary requirement in protection of human rights. However, we should realize that the protection of lawyers' right to practice is related to all the aspects of judicial reforms and the amendment to the law is only a prelude. In the new law, the stipulations concerning lawyers should accord with the amendment to the three procedure laws and relevant legal documents of the related judicial organs. We believe the amendment to the Criminal Procedure Law will ensure the enforcement of the revised Law on Lawyers and guaranteed the lawyers' legitimate rights.
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The author is an associate professor at the International Law Department of China Foreign Affairs University. |
