Since Xi Jinping came to power in late 2012, one of the Chinese Communist Party’s main objectives has been to restore the credibility and authority of its judicial system. Though it might be argued that the best way to achieve this goal would be the promotion of judicial independence and genuine rule of law, indications are that the actual strategy may involve strengthening control over the judicial process and regulating the activities of the various actors therein.
One of the main targets appears to be lawyers. Chinese lawyers enter the courtroom knowing that trials in their country are not conducted on a level playing field. In many cases, they find that the prosecutor is not their only adversary and that they are also faced with judges who ignore procedures, restrict the scope of debate, or limit the amount of time available to present defense arguments.
This environment has contributed to growing tension and conflict between judges and lawyers, especially lawyers who feel a moral responsibility to challenge hypocrisy and injustice within the country’s legal system. Sometimes, these conflicts escalate into heated arguments or lead lawyers to disrupt trial proceedings by refusing to speak or leaving the courtroom in protest. Lawyers risk losing their right to practice by pursuing such tactics, but many do so anyway to signal their refusal to be part of unfair judicial processes that fail to protect individual rights.
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The authorities now appear to be raising the stakes even further, with a recent proposal to amend Article 309 of the Criminal Law that would make “insulting, defaming, or threatening a judicial officer” and “engaging in other acts that seriously disrupt the order of the court” subject to up to three years’ imprisonment. Many lawyers have interpreted the proposal as an attempt to “gag” them. More than 500 to date have signed an open letter (which I have translated below) calling on the National People’s Congress Standing Committee to reject the proposed provisions. Though tiny relative to the total number of registered lawyers in China, this collection of signatures nevertheless demonstrates a strong degree of professional solidarity extending well beyond those lawyers who identify themselves as human rights lawyers and reflects a common concern for preserving the rights of lawyers in China’s legal system.
It is highly unlikely that the Communist Party’s recent expressions of commitment to “rule of law” will do much in the near term to foster a judiciary whose authority rests on its impartiality and independence. Though this means Chinese lawyers will likely have to endure the unbalanced playing field for some time, the willingness of so many to oppose the proposed new rules demonstrates that they are determined to struggle to prevent their position from eroding even further.
Legal Opinion on Article 35 of the Ninth (Draft) Amendment to the Criminal Law
We are a group of legal professionals who care about the rights of lawyers and reform of the judicial system and who have taken note of the draft for the Ninth Round of Amendments to the Criminal Law (hereafter, “draft amendments”) that was published on the website of the National People’s Congress (NPC). After serious study and discussion, we are unanimous in finding major problems with the revisions proposed in Article 35 of the draft amendments. Below, we present our legal opinion on this matter for the reference of the members of the NPC Standing Committee who will decide on these amendments.
Article 35 of the draft amendments would revise Article 309 of the Criminal Law (hereafter, “CL 309”) to the following:
Whoever engages in one of the following acts, and thereby seriously disrupts the order of the court, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance or be fined.
(1) Gathering people to stir up trouble in a court or attack the court;
(2) Beating up a judicial officer or participant to the litigation;
(3) Insulting, defaming, or threatening a judicial officer or participant to the litigation after being told by the court to stop;
(4) Engaging in other acts that seriously disrupt the order of the court.”
Compared to the current text of CL 309, one sees that the draft amendment adds “insulting, defaming, or threatening a judicial officer or participant to the litigation” and “engaging in other acts that seriously disrupt the order of the court” to the circumstances covered under the crime.
We believe that this revision violates two basic principles of the Criminal Law, runs counter to the direction of China’s judicial reform, and would seriously undermine the procedural justice that is an especially prized part of the judicial process.
Our detailed reasoning is as follows:
First, as a matter of legal parlance, “insulting,” “defaming,” or “threatening” are all words of a strongly subjective nature. Different judges and prosecutors in different contexts and under different emotional conditions will use these words in completely different ways, making it very difficult to predict their meaning. As for the fourth item, “engaging in other acts that seriously disrupt the order of the court,” this is an extremely flexible “pocket clause.” We ask: What acts constitute “disruption”? At precisely what degree does “disruption” become “serious”?
This amendment cannot answer these questions, and, therefore, it does not possess the necessary explicitness required of a Criminal Law provision. The principle of nulla poena sine lege (no punishment without legal statute) necessitates that criminal statutes be expressed explicitly to prevent judicial personnel from differential or arbitrary application of the criminal law and thereby protect the freedom and security of the public. At the same time, explicit criminal law provisions enable people to predict whether their behavior has the potential to violate the criminal law and thereby promote law-abiding behavior throughout society.
Second, this amendment violates the criminal law’s necessity principle. Insult, defamation, and threats, as well as other acts that disrupt court order, can all be fully dealt with through things like reprimands, fines, or judicial detention, which have the effect of punishing the behavior without resort to the criminal law. Serious cases of insult or defamation or serious disruption of court order are already covered by appropriate criminal statutes, and threats should not be criminalized if they do not result in consequences. Moreover, considering that the entire trial process is carried out in the presence of court police officers, there is already a full ability to control and resolve any such situations that may arise during the trial. The existing CL 309 statute already establishes a set of criminal circumstances; there’s no need to further lower the threshold for what is considered criminal.
Third, this amendment runs counter to the direction of China’s judicial reforms and does not help to further establish a criminal trial process centered on the trial, in which judges are neutral and prosecution and defense are given equal standing. This amendment, which is flexible and lowers the threshold of what is considered criminal, will make lawyers feel the need to tread carefully, as if they were walking on thin ice. Criminal defense lawyers will be particularly afraid of being faulted at every turn and thus not dare to speak their minds fully at trial in defense of their clients. This will tilt the already unbalanced playing field between defense and prosecution even further in favor of the prosecution. This not only restricts defendants’ right to defend themselves and undermines procedural justice, it also prevents the judicial panel from fully investigating the facts of the case and will ultimately lead to an increase in the rate of wrongful conviction.
Fourth, when we consider the current reality of criminal trials in China, other than conflicts between prosecution and defense, there are a great number of conflicts between judges and defense lawyers. This amendment will make defense lawyers increasingly timid in the face of judges. In an inquisitorial trial system, judges take the leading role in the proceedings. In trial practice, judges are quite often extremely arrogant and bossy toward defense lawyers, interrupting them for no reason as they speak and even depriving them of their rights to defend their clients.
If this amendment becomes law, one can well imagine what the impact will be on the mindset of defense lawyers. A defense lawyer who is servile and obsequious to a judge will inevitably not dare to fully express his or her defense opinions. The hidden consequence will inevitably be as we have already stated above: a restriction of defendants’ right to defend themselves, undermining of procedural justice, and an increase in the rate of wrongful conviction.
This is why Article 16(a) of the U.N. Basic Principles on the Role of Lawyers makes clear that “Governments shall ensure that lawyers … are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.”
Based on the above, Article 35 of the draft amendments ought to be eliminated and there should be no change made to the existing text of CL 309.
We hope that members of the NPC Standing Committee will be motivated by their sense of high responsibility and seriously consider our legal opinions.
[A current list of signatories is available in Chinese with the original Chinese version of the letter.]
Visit the original source and full text: ChinaFile