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.