Lawyers in the Pursuit of Basic Legal Rights: Criminal Defense in China
Terence C. Halliday and Sida Liu
The development of basic legal rights and a legal profession to defend them is a crucial issue that is heavily debated within China and across the world. This study asks two key questions: What capacity do Chinese criminal defense lawyers have to defend individuals threatened with infringements of fundamental legal rights? And how are Chinese defense lawyers contributing to the development of a robust legal profession that protects basic legal freedoms? The project examines lawyers' ability to represent criminal defendants from five angles: (1) everyday lawyering, where practitioners play with and by the rules of criminal practice; (2) collective action by lawyers through networks, virtual communities and bar associations to advance basic legal freedoms; (3) cycles of criminal procedure law reform by the National Peoples Congress where rules of practice are forged; (4) the national and international media which provide public commentary on lawyers in criminal practice and influence their role within China; and (5) international influences on the shape of China's criminal justice system. Obtaining data from a variety of complementary perspectives, Halliday and Liu conduct 210 interviews with lawyers across China, undertake systematic analysis of Chinese and foreign media reports on criminal practice, engage in extensive archival research, and interview groups inside and outside China that seek to foster a strong criminal defense bar. Answers to these questions will go a long way towards understanding the achievements and impediments to rule of law in China. They will also show how domestic advocates inside China and supporters of the rule of law outside China can provide assistance to realize the emergence of a legal system in the PRC that is consistent with the United Nations' global norms.
In many countries across the world, lawyers have mobilized to press their countries away from authoritarian rule towards politically liberal societies. A liberal political society has three essential elements for activist lawyers: (1) basic legal rights, such as freedom from arbitrary arrest and torture, and legal defense of suspects; (2) a vital civil society which permits freedom of speech and association; and (3) a moderation of state power itself, most often through independent and autonomous courts. Is there evidence of lawyers mobilizing for political liberalism in China? Is it evident in lawmaking of criminal law or criminal procedure law? Can it be observed in everyday legal practice? This extensive research, using many kinds of documentary, interview, survey and media data, demonstrates that there is evidence for some mobilization by lawyers for political liberalism in China, both in lawmaking and in everyday practice. However, it is slight and fragile and is subject to resistance and even repression. Reforms of criminal procedure law in 1996 and 2012 both promised a movement towards international standards for rule of law. In both cases, however, either the legislation itself or parallel or secondary legislation subverted some of the most important protections of criminal suspects, detainees or persons on trial. "Big Stick 306" in the 1997 Criminal Law threatened lawyers with arrest if they represented their clients too zealously. Provisions in the 2012 Criminal Procedure Law may be used to "disappear" persons for weeks or months without legal protections. Several pieces of evidence indicate that a small but significant proportion of criminal defense lawyers across China (perhaps 10-20%) consider their everyday practice to be more than simply a way to earn a professional living. These grassroots liberal lawyers believe that they are using the protections provided by the formal criminal procedure law to build rule of law and a politically liberal society in China. A tiny group of rights-lawyers, mostly in Beijing, fight for political liberalism in their efforts to defend clients in the most contentious cases across China—environmental harms, housing evictions and land takings, religious freedom cases, and forced abortion cases, among others. These lawyers state that every case is more than a case. It is another small step towards a new China that respects rule of law, relies on constitutionalism and constitutional protections, and, in effect, contributes towards a politically liberal society. The research concludes that while the great majority of China’s lawyers give little thought to ideals of political liberalism, or mobilize in practice towards a liberal political society, a substantial minority of everyday criminal defense practitioners and a tiny number of high profile activist lawyers are fighting for transitions in China towards an open political society that has resemblances to transitions in parts of Asia (e.g., South Korea, Taiwan) in recent decades and to long-term transitions towards political liberalism in the Americas, Africa and Europe.
