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The State of China’s Legal Profession

In a report issued this past May, the New York City Bar Association’s Coun­cil on Inter­na­tion­al Affairs detailed the find­ings of a 9-mem­ber del­e­ga­tion to Bei­jing, Chi­na.  The del­e­ga­tion, which made its vis­it dur­ing the pre­vi­ous Decem­ber and which includ­ed NYU Pro­fes­sor Jerome A. Cohen, report­ed four pri­ma­ry con­cerns: 1) the Chi­nese legal infra­struc­ture; 2) restric­tions imposed upon human rights lawyers; 3) over­sight by the All-Chi­na Lawyers Asso­ci­a­tion; and 4) sup­pres­sion of high-pro­file legal activ­i­ty.  Accord­ing­ly, its report por­trays a sad­den­ing and com­plex legal envi­ron­ment that rais­es impor­tant ques­tions.

The Chi­nese gov­ern­ment exer­cis­es oppres­sive con­trol over the country’s attor­neys.  For exam­ple, lawyers who rep­re­sent human rights advo­cates and the under­priv­i­leged face police harass­ment and risk the revo­ca­tion of their license to prac­tice law.  Addi­tion­al­ly, lawyers are bound by the dic­tates of the All-Chi­na Lawyers Asso­ci­a­tion (ACLA), which per­mits only “polit­i­cal­ly qual­i­fied lawyers” to han­dle sen­si­tive cas­es.  More­over, a new Crim­i­nal Pro­ce­dure Law impos­es a three- to sev­en-year jail sen­tence for fal­si­fy­ing evi­dence and tes­ti­mo­ny.  Pros­e­cu­to­r­i­al abuse of this law has “cre­at­ed a chill­ing effect on crim­i­nal defense lawyers.”

Also prob­lem­at­ic is dom­i­na­tion by the Chi­nese Com­mu­nist Par­ty.  It exer­cis­es tight con­trol over judi­cial appoint­ments, and is huge­ly influ­en­tial in law firms and lawyer asso­ci­a­tions.  But reac­tion this news must be tem­pered by the his­to­ry of the Chi­nese legal sys­tem.  The report explains that, after the found­ing of Com­mu­nist Chi­na in 1949, the rul­ing par­ty ini­tial­ly treat­ed the courts as polit­i­cal tools.  Dur­ing the Cul­tur­al Rev­o­lu­tion, last­ing from 1966 to 1976, legal process­es went unused.  A legal infra­struc­ture  reemerged only after Mao Zedong’s death in 1976.

In light of this his­to­ry, it may be more use­ful to react to the tra­jec­to­ry, rather than the cur­rent state, of China’s legal sys­tem.   Indeed, there is rea­son to remain opti­mistic.  Giv­en that China’s legal sys­tem evolved from the Sovi­et mold, the fact that lawyers may rep­re­sent polit­i­cal­ly-sen­si­tive clients at all is crit­i­cal.  Sim­i­lar­ly impor­tant is the fact that crim­i­nal defense and human rights law firms oper­ate open­ly; Chi­na thus appears to have an inter­nal engine for change.

Still, progress will only be sus­tain­able if China’s legal pro­fes­sion­als are will­ing and able to train sub­se­quent gen­er­a­tions of legal activists.  Are stu­dents taught that legal advo­ca­cy is a ser­vice to the par­ty?  Or to soci­ety?  Are the crim­i­nal defense and human rights law firms por­trayed as quixot­ic out­liers?  Or as paragons of legal excel­lence?  The report does not address these issues, and a sub­se­quent mis­sion con­cern­ing legal edu­ca­tion is an impor­tant next step.

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