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Authorities Should Do More to Protect China’s Lawyers

By Hu Shuli

A Communist Party group led by General Secretary Xi Jinping that was established to spearhead reform efforts finished a document on September 15 addressing the plight of lawyers. A day later, top judicial authorities, including the Supreme People's Court and several ministries that handle legal affairs, issued a regulation that details measures to safeguard the rights of attorneys.

Little more than a month ago, Meng Jianzhu, head of the Central Politics and Law Committee, the party’s top authority on law enforcement and the courts, gave a speech at a national lawyers’ conference that called for tackling the distrust and hostility that court officials have for attorneys. In the lengthy speech, which was published in the state-run Legal Daily in August, Meng said the onus is on court officials to let lawyers do their jobs so that justice can be served.

These moves come as the party acknowledges that lawyers in the country are being marginalized in trials, often at expense of justice. This admission and the party’s willingness to tackle the problems that lawyers encounter are welcome, but the party must take concrete steps to rein in the court officials it backs and provide adequate protection for attorneys so they can perform their duties.

For most of its recent history, China has not had lawyers. This did not change until the early 1980s, when reform and opening up to the outside world started, but by the end of last year it had 270,000. Despite this progress, lawyers have long complained about the difficulties they face in seeing clients held in police custody, and accessing court documents and witnesses. Many are dismayed that they are often denied a chance to challenge judges and cross-examine witnesses, saying they are interrupted and even evicted from court for this behavior. Meng has said that lawyers are seen as troublemakers and are often at the mercy of court officials, an observation that many attorneys would agree with.

There is no doubt that lawyers have little power when dealing with government-backed courts and prosecutors, but China needs long-term stability and order, conditions that will not come about without the help of lawyers. Many court cases have shown that when lawyers are unable to do their jobs or make their voices heard in court, convictions are likely to be flawed. These miscarriages of justice hurt the public's trust in the judicial system and threaten the stability of society.

The authorities have certainly noted the problems and shown they are resolved to tackling them. The party’s reform leading group has not released its latest document in full. Based on what has been made available, it will involve better safeguards for lawyers when defending their clients and include a code of conduct to better handle unruly attorneys. The regulation from the judicial departments and ministries offered more specific measures for safeguarding lawyers' rights when gathering evidence, gaining access to clients and witnesses, and challenging judges. For instance, under the new rules, lawyers can refuse to be watched or filmed while meeting their clients and they are to be treated as the equals of judicial officials when undergoing security checks at courthouses.

But fully protecting the rights of lawyers remains a complex issue given that the judicial system is part an establishment. Both the criminal code and the Lawyers Law have clauses providing protections to attorneys, but problems remain anyway, and we should not expect the party to solve all these issues in one go. Lawyers will likely continue to face barriers in accessing court documents and witnesses in some cases because judicial departments will keep the upper hand in trials. And disappointingly, the latest regulation fails to endorse an initiative put forward at the fourth full meeting of the party's 18th Central Committee in October last year that would guarantee lawyers more access to witnesses.

For its part, the party is focused on efforts to rebalance power between the court officials and lawyers, but there has not been a clear oversight over how to hold courts and prosecutor's offices and the police responsible should a lawyer be mistreated.

The authorities have shown they want to address the many problems that lawyers face when doing their jobs, and we may see some progress. However, they should also realize that they need to act now and fast to provide the public with the legal protections it deserves. A good place to start is by letting lawyers do their jobs.