Glittery promise vs. dismal reality: the role of a criminal lawyer in the People's Republic of China after the 1996 revision of the Criminal Procedure Law.

• Author: Yu, Ping

ABSTRACT

In this Article, the Author examines the recent revisions to the Chinese Criminal Procedure Law. The Author maintains that while the revisions were intended to promote a more equitable criminal justice system, the political climate in fact has rendered the revisions a step down for both defense attorneys and defendants. The Author analyzes different aspects of the revised law in order to support this point. In his conclusion, the Author suggests some changes to the criminal procedure law that may help to bring the Chinese defense system up to international standards.

1. INTRODUCTION

   Historically, Chinese lawyers have been characterized as "state legal workers" (1) who were supposed to safeguard the interests of the state instead of their particular client. An independent lawyer who confronts the state prosecutor is alien to the Confucian tradition. During the Dynasty period, individuals who aided others in litigation or advised them in legal matters were treated negatively by the government and were given the nickname "litigation tricksters" (song gun). (2) Ironically, there was an official recognition of the legitimate need for legal service, particularly in view of the high rate of illiteracy in the society. (3) While there remained a hostile attitude toward the legal professional into the Republic era, some changes were made following efforts to modernize the legal system.

   After seizing power, the Chinese Communist Party (CCP) immediately abolished all Republic of China laws and prohibited the practice of the abolished laws by legal professionals. (4) As an independent profession, lawyers virtually disappeared from society. In the mid-1950s, however, China began to rehabilitate the legal system after the enactment of the Constitution (5) and the Organic Law of People's Courts. (6) The total number of lawyers nationwide in 1995 totaled only eighty-one in twenty-six cities. (7) The number of lawyers grew rapidly in the following year to 2800. (8) The number of bar associations was nineteen nationwide. (9) With the introduction of the Anti-Rightist Campaign in 1957, lawyers were criticized and purged. Many lawyers were sent to labor camps for re-education because of their professional role in defending the criminally accused. Until 1959, the government closed aU law offices through which lawyers provided legal services throughout the nation. Again, lawyers vanished from the normal life of the ordinary Chinese. (10)

   In the two decades between 1959 and 1980, China did not have any active lawyers, nor did China have any viable laws to be practiced by lawyers. The introduction of the Interim Regulations on Lawyers enacted by the National People's Congress Standing Committee on August 26, 1980 began the rehabilitation of the role of lawyers. Chinese lawyers have played an increasingly important role, initially in the commercial area and then in all aspects of society.

   More specifically, the Lawyers Law of People's Republic of China (Lawyers Law), which was promulgated in 1996, turned a historical page for the legal profession. (11) Under the Lawyers Law, a lawyer is defined as "a professional who provides society with legal service" (wei shehui tigong falu fuwu de zhiye renyuan) instead of "a state legal worker" (guojia de falu gongzuozhe) as in the old provision. (12) This change is expected to enable lawyers to work more independently and to provide legal services more effectively. In addition, the Lawyers Law details the scope of legal services that a licensed lawyer can provide and ensures that lawyers are protected by law while performing their legal duties. (13) Lawyers are also legally required to provide legal aid to indigent people. (14) The Lawyers Law provides a legal guarantee for the lawyer's practice in a psychological and arguably a material sense. Overall, the Lawyers Law brings prosperity to the legal profession. The upsurge of the legal profession can be seen from its booming numbers. As of May 15, 2001, China had approximately 117,000 lawyers serving in 9,691 law firms. (15)

   In spite of diverse practice areas, Chinese lawyers were primarily recognized for their function in criminal proceedings. Not coincidentally, the rectification of the legal system was initially focused on the lawyer's role in the criminal process. (16) This public image was partly reinforced by the official campaign on enhancing public awareness about the law (puji falu changshi yundong), of which the publicity of criminal cases and process has been a prominent feature. Further, the Chinese media coverage of law has mainly told the story of the criminal trial.

   In addition, the revision of the Criminal Procedure Law (CPL) in 1996 highlighted the role of the lawyer in the criminal process and allowed the lawyer to participate in the process as early as the preliminary stage. (17) The revised CPL seemingly paved the way for lawyers to further glorify their career in criminal defense. The 1996 revision also included other reforms such as the procedural improvement aimed at introducing a more active role for lawyers in the trial process. International society and the human rights watchdogs warmly welcomed these reforms. (18) It was hoped that lawyers would play a significant role in the criminal process in terms of safeguarding the defendant's or suspect's rights and bringing the criminal trial closer to the internationally recognized standards.

   As this Article will demonstrate, however, subsequent implementation of the CPL has indicated resilient resistance from the judiciary and law enforcement officers to legal reform. Contrary to the expectation of the general public, many legal provisions contained in the CPL with regard to suspect's and defendant's rights have been ignored or substantially cut short in the process. The resistance is particularly great regarding certain aspects of the involvement of lawyers in criminal cases.

   As described below, a lawyer's capacity in the early stage of criminal investigation has been generally impaired. For instance, lawyers are not able to meet and communicate with clients in custody and largely fail to collect evidence on their own initiative. After prosecution, lawyers normally have less access than previously to case information gathered by the prosecution. Moreover, they can face criminal penalties for engaging in vigorous defense of their clients. The role of lawyers in legal defense envisaged in the revised CPL has been severely diminished by various implementation measures.

   This Article will first review the general situation of lawyers in criminal proceedings. Then, it will examine a lawyer's practice at different stages of the criminal process by comparing the 1979 Criminal Procedure Law (1979 CPL) and the CPL. The comparison will include the investigation stage and the trial phase. It will also address the critical issue of the lawyer's risk in handling a criminal case after the revision of the CPL and the Criminal Law. Finally, the Article will assess the lawyer's role under the CPL reform and will offer comments about actions that are necessary on the part of the government in order to improve the overall system and to bring the Chinese legal system into compliance with the internationally recognized standard.

   The two primary sources of information for this paper are official Chinese publications and interviews with Chinese legal scholars and practitioners both inside and outside China. In the past three years, the legal press and professional periodicals have published a large number of articles and reports on the implementation of the 1996 CPL. The Author also carried out a series of interviews with Chinese legal scholars, lawyers, judges, prosecutors, and officials of legislatures in different areas. (19) These interviews provided first hand information about the implementation of the CPL in some areas. The Author also used information from observations of several criminal trials in Beijing and Shanghai that provide details on trial reform. Finally, the Author collected various official documents, both legally enacted and internally circulated, that shed light on the real picture of CPL implementation nationwide as well as in specific localities.

2. THE LAWYER'S FORMAL ROLE AND THE REALITY OF THE CRIMINAL PROCEEDINGS

   According to the stipulations of the CPL, lawyers can perform two different functions in the criminal process: provide legal counsel (falu zixun) and defense representation (daili bianhu). To safeguard the rights of defendants or suspects, the CPL allows attorneys to provide legal counseling to individuals being detained or questioned. (20) In contrast, the old CPL permitted attorneys to be involved in the process only after the cases were brought before the courts. (21) After cases are transferred to the prosecutor's office for prosecution, defendants have the right to hire lawyers to handle their defense. (22) Compared to the old provision, this represents a step forward. (23) While they are preparing a defense, lawyers can collect evidence and have the right to check, take note of, and duplicate the evidence collected by prosecutors. (24) In addition, lawyers have the right to meet with their clients and maintain communication with them. (25) More importantly, lawyers have the right to defend their clients in court trials, including cross-examining witnesses (26) and appealing on behalf of their clients. (27)

   The Chinese media, however, has reported that lawyers involved in defending criminal cases encountered great difficulties when the CPL first entered into force. (28) Often, during the early stages of investigation, lawyers could not obtain access to suspects held in custody by public security departments and procuratorates, although the CPL authorizes lawyers to meet with criminal suspects if the suspect so requests. Lawyers were usually required to obtain an approval from the public security departments or the procuratorate in...