A victory for the rule of law: an untold story in China
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It all culminated in these articles at the beginning of June. I won’t bother quoting from the articles; the titles are pretty self-explanatory:
New York Times: Beijing Suspends Licenses of 2 Lawyers Who Offered to Defend Tibetans in Court
Washington Post: China Shuts Out 2 Lawyers Over Tibetans’ Cases
Toronto Star: Lawyers pay high price for coming to aid of Tibetans
Reuters: China rights lawyers say licenses blocked after Tibet call
The articles largely agree in content, and are basically copied directly from press releases from activist dissident groups: the two lawyers were denied their licenses for political reasons, authoritarian China, no sign of reform, etc, etc…
Well, we’ve learned more about their situations since. However, the Western media doesn’t seem very interested in telling the rest of the story. We’ll just have to discuss it here.
One the lawyers named in the stories, Teng Biao, still has not received his license to practice law. However, the reason for the continued denial is now more clear. This press release from Weiquanwang (Rights Defense Net) gives us the details (连接):
China’s famous rights-defense lawyer, and professor at China University of Politics and Law, Teng Biao has still not been able to complete the annual validation of his lawyer license. This is because the China University of Politics and Law has refused to issue a document, showing agreement that he could work part-time (moonlight) as a lawyer outside of the university.
The University of Politics and Law used to be relatively open and tolerant, but the refusal to provide relevant documents this time clearly indicates they’ve received pressure from above.
Of course, even if the University used to be “tolerant”, I don’t see their refusal to allow Teng Biao to take on part-time legal work as being equivalent to political pressure. And the question begs to be asked: why doesn’t Teng Biao just resign his teaching position at the (government-funded) University of Politics and Law?
There is better news for the other lawyer named. On June 30th, Jiang Tianyong announced via an open-letter that he had received his license (连接). His letter is titled “A victory for rule of law“, and translated here:
At around 2 PM on June 30th, my lawyer’s license passed its annual verification. At this point, I have been unable to practice for a month; compared to other lawyers at my firm, its been delayed for two months. But it ultimately was approved, just as I firmly believed it always would be. This is a victory for the rule of law!
I’m thankful for the concern, help, and support I’ve received from friends in all fields!
In recent months, many friends have expressed concern over my annual verification, and frequently asked: “can it be solved?” My response: “I believe in the law, it will be approved.” Approval for my lawyer license will greatly increase all of our confidence in law, and the rule of law in China. This event signifies progress in the rule of law in China, and I firmly believe that rule of law will continue to progress in China without any reversal! Today isn’t the same as yesterday; now isn’t the same as the past!
From my heart, I would like to express my praise and appreciation for the city of Beijing’s legal ministry for having the spirit to bravely correct its mistakes. I also deeply hope that the small number of workers in the ministry with a weak understanding of the law will keep studying the law, and establish deeper understanding of rule of law. I hope they will become accustomed to China’s continued development in rule of law, and avoid any further incidents that severely hurt the image of rule of law in China.
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July 21st, 2008 at 11:26 am
In comments to another post, I said foreign media is not in it to find the facts because there is accountability for it. Their domestic audience doesn’t want hear from their foreign correspondents that their own country is bad and some other countries are good or work well. They want to hear that their country is good and works well but other countries are bad and don’t work. So the foreign media in a way is in a pitiful place. Like often mentioned “China expert”, anti-censorship advocate, Rebecca Mackinnon, she had to resign from CNN because American viewers were not interested in her stories. What can you do? I’d ignore the foreign media as well because there are structurally biased and are built to seek facts, as argued above. Jumping into supportng the Iraq war and helping create greatest mistake in recent history is the doing of CNN, FOX, etc…
July 21st, 2008 at 11:27 am
Oops, Correction: I said foreign media is not in it to find the facts because there is NO accountability for it.
July 21st, 2008 at 11:49 am
@Netizen – There is accountability for western journalists operating in China, as I have mentioned elsewhere, journalists have been punished for making demonstrably inaccurate reports – look at this report as an example:
http://www.guardian.co.uk/world/2005/oct/17/china.commentanddebate
I understand the writer concerned was on a one year contract, and now no longer works for the Guardian.
July 21st, 2008 at 12:40 pm
Thanks to Buxi for this interesting follow-up on the fate of the two lawyers.
Minor quibble:
“Of course, even if the University used to be “tolerant”, I don’t see their refusal to allow Teng Biao to take on part-time legal work as being equivalent to political pressure. And the question begs to be asked: why doesn’t Teng Biao just resign his teaching position at the (government-funded) University of Politics and Law?”
If the employment contract between Teng Biao and the university stipulates that their teaching staff is not allowed to have any outside jobs at the same time, it’s a matter between employer and employee. But if outside employment is allowed or disallowed at the discretionary powers of the employer alone, it can very well be abused as a form of political pressure. And the reason Teng doesn’t want to quit his teaching position is equally obvious. It’s a steady income, whereas an existence as a lawyer taking on cases which might draw the ire of the government is a very precarious one, wouldn’t you agree?
You seem to imply that it is a contradiction for Teng to hold a teaching position at a state-funded school and be ready to represent “FLG/Tibetans/dissidents “-defendants at trials at the same time. Surely it is the purpose of a lawyer to defend clients, even if they should be guilty. It shouldn’t expose said lawyer to the risk of of losing his livelihood, if he decides to accept a case.
@Netizen
“Their domestic audience doesn’t want hear from their foreign correspondents that their own country is bad and some other countries are good or work well. They want to hear that their country is good and works well but other countries are bad and don’t work. ”
You, sir, must be reading some very funny “foreign media”. And you seem to always delight in finding anything, which can be construed as either inaccurate or derogatory about China, as defined by you. For your own sanity, I suggest you stop rifling excitedly through the trash and go looking instead for stuff which is more worth your while: well-researched articles, academic or journalistic, in-depth analysis, facts and figures. Thanks to the internet (Great Firewall or not) you will find both in foreign as well as in Chinese media. Your sweeping assertions about “foreign media” and “foreign audiences” unfortunately reveal a sad lack of critical judgement and 感情 for anything beyond your horizon.
July 21st, 2008 at 2:01 pm
@Buxi – A lawyer being refused the documents necessary to continue his work if he does work outside his university job (i.e., represent Tibetan activists) is putting pressure on him not to represent these men. I’m sure you’re quite aware that the vast majority of Chinese university professors ‘moonlight’ in other jobs, all of them are governed by similar rules, and I doubt that this is being done to any of this man’s colleagues. As for the second case, delaying someone’s certification so they cannot practice is exerting pressure on them, even if the authorities decided to relent in the end.
This kind of certification is a routine practice in Chinese law, and delaying it in this fashion is quite out of the ordinary.
July 21st, 2008 at 2:33 pm
@Buxi
Zuiweng and FOARP put it very well. Just add another question, when are we going to see at least one of these lawyers defending Tibetan rioters? Or did Jiang Tianyong receive his license under the condition that he drop the case? One of the best ways of intimidating a person into submission is to deny him or her something he wants, and then suddenly grant it with the implicit understanding that something is done in return.
July 21st, 2008 at 2:39 pm
@FOARP,
If there’s one thing we can probably all agree on when it comes to China, its that what is “ordinary” can change quickly when it comes to China. Policy ranging from drivers license, to issuance of passports, to issuance of household registration, to (the now infamous case) of issuing visas to foreigners… these can and have changed quickly.
To both you and zuiweng, I absolutely agree that it’s political concern about these two men’s activities that kept their license from being renewed. It’s not an accident, their paperwork wasn’t lost in the mail… whoever is responsible for this process saw what Jiang Tianyong had been working on, and thought his activities were “hurting China”. And that, in my opinion, is an illegal action.
Which is why I agree with Jiang Tianyong’s message on how this process ultimately ended: this is progress for China’s rule of law. For government to function under rule of law, it has to be a neutral referee. It can not continue to unilaterally make decisions about these cases on political considerations, it has to follow the law and regulations as they are written.
But if Jiang Tianyong’s issue is validation of rule of law, then I see Teng Biao’s failure to get a license also as validation of rule of law.
I don’t really know how many professors at the CUPL are allowed to moonlight, and Teng Biao’s press release doesn’t mention it either. But in any case, as long as what CUPL is doing agrees to the terms of the law, then I’m completely comfortable with it. Exactly as zuiweng said: the relationship between CUPL and Teng Biao is between employer/employee… *not* a relationship between government administrative bureau and citizen. And therefore, when whoever is in charge at CUPL relies on the law to achieve their objectives, it just continues to strengthen Chinese consciousness of rule of law.
July 21st, 2008 at 2:45 pm
There are laws and regulations to cover every possible situation in China. Without the correct interpretation, however, the laws are meaningless. So the real question is who has the authority to interpret the law? The answer is obvious.
July 21st, 2008 at 2:46 pm
@Hemulen,
On the first, they were denied the right to represent the rioters. I would’ve loved to see it happen, but it didn’t. I haven’t found any description from anyone involved as far as the exact reason why. In other similar cases I’ve seen, lawyers have been denied because:
a) local government simply refused to properly implement the lawyer law,
b) prisoner refused to accept the lawyer.
My knowledge of Chinese law is fuzzy, but from what I’ve seen, I believe only the prisoner… not his/her family… has the right to retain a specific lawyer. But in many cases, I don’t believe prisoner probably wouldn’t have been allowed to meet or speak with the lawyer before hand. Assuming the local government even played along to the rules (which is a major assumption), the prisoner might’ve just received a note: “XXX would like to represent you.”
So, while we’re celebrating the fact that lawyers can continue to practice as a (small) victory for the rule of law… we’re unable to celebrate the larger victory for the rule of law, when these gentlemen could’ve defended the Tibetan rioters in open trials. That’s what I personally would’ve liked to see, and hope to see soon.
As far as the second sentence… maybe he received his license because he agreed to help harvest out an organ from a Falun Gong prisoner? Jiang Tianyong and the other lawyers have never been shy about discussing what’s on their minds throughout this process, do you think random speculation is really productive?
July 21st, 2008 at 3:04 pm
This is not exactly on topic but I would like to politely request that Netizen (and other posters) stop using the term ‘ foreign’ – it’s lazy and inaccurate unless you genuinely believe that you are referring to everyone other than Chinese people. I realise the term 外国人 is sometimes used fairly unreflexively by many Chinese (including to refer to local people when the Chinese person is in fact the one living away from their home country), but to talk about the foreign media and its domestic audience is silly because you could be referring to any country in the world. If you mean the Western media, then say Western media – unless you want to promote the idea that it really is China vs the rest of the world. Sorry for the rant.
July 21st, 2008 at 3:16 pm
@Buxi
This is “Ah Q-ism” at its best. If the lawyers were denied the right to represent the Tibetan rioters and some of laywers had their licenses revoked, where is the victory here? What is the net result that amount to any kind of progress?
July 21st, 2008 at 3:34 pm
Teng Biao’s case is pressure… but the pressure doesn’t have to originate in back room meetings with party officials. The university itself could be exercising a bit of self-censorship. Now, there could be other reasons that Teng is not getting his letter of agreement and the university may not be in a position to disclose them.
I am not surprised that a university has rules/regulations against its academic staff from “moonlighting” but yet are lax in enforcement. For the most part, the academic staffs’ involvement in the community can be an enriching experience for a university. So, as long as their activity doesn’t embarrass the university, it can have a benefit. The rule is held in reserve to bring staff into line.
Regulations of an organization such as a business or a university are not the same as the laws of a country. CUPL’s actions against Teng, as detailed in this blog posting, are not a victory for the rule of law in general. In order for this case to be a victory for the rule of law in general, there would have to be something done in the spirit of the rule of law. Neutering a defense lawyer is not in the spirit of the rule of law. Moreover, all the university has to do is issue an agreement that Teng can work part-time as a lawyer… sounds like ordinary contractual stuff to me.
So, the question I have for CUPL is why the protecting defense lawyers an embarrassment? How can they continue to call themselves a university of political science and law when they message to the world that they do not hold dear some very basic concepts of the rule of law?
Of course, when I say “rule of law,” I mean a system where the law is applied fairly and where the individual has the right to an able and unfettered defense. The presumption of innocence is also pretty important.
July 21st, 2008 at 3:48 pm
@Hemulen,
Perhaps you didn’t read closely, the point is that the lawyer have not had their license administratively revoked by politicians.
@MutantJedi,
The CUPL is an university, and its mission is to accept students, teach them, and graduate them. It seems to me to be a stretch to insist that it has a moral responsibility (and I’m sure you don’t mean a legal responsibility) to hire defense attorneys just to forward the rule of law.
To convince me something inappropriate is going on here, I’d have to know: % of professors nation-wide allowed to moonlight; % of law professors nation-wide allowed to moonlight; % of law professors at CUPL not named Teng Biao allowed to moonlight. I doubt the numbers are anywhere close to 100%.
It seems to me the right solution is: Teng Biao should quit his position at the university, and perhaps join the firm of the other “rights-defense” lawyers.
July 21st, 2008 at 4:00 pm
@Buxi
I did read the article, but I fail to see the victory of rule of law. Where is is the net benefit?
July 21st, 2008 at 4:08 pm
Buxi,
If Teng is a good professor and a good lawyer, it would benefit the quality of his teaching that he could practice law. Are you suggesting that one can not be a professor and a lawyer at the same time? Engineering professors can’t practice engineering? Medical professors can’t practice medicine?
If the institute was serious about law, yes it would want to attract the best defense lawyers into its faculty.
The university does have a moral obligation to its community, to its country, to its students and to its faculty.
July 21st, 2008 at 4:28 pm
@MJ,
I really don’t know what standard practice is at CUPL or law universities in China. The fact that permission is contractually required… well, that tells me it’s not a straight-forward process at all.
I understand that some professors (a small minority) moonlight in American universities, but I have to say, the concept seems very foreign to me from a Chinese point of view. The idea that a medical or engineering professor might be able to work out some kind of venture in *partnership* with the school, that I can understand. The idea of having a separate practice… that feels very strange.
Here’s an interesting article on the practice in American law schools:
http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1170928969030
July 21st, 2008 at 4:36 pm
@Buxi
the concept seems very foreign to me from a Chinese point of view.
What is the Chinese POV here? Why don’t you just say that the concept seems strange to you?
July 21st, 2008 at 4:53 pm
@Hemulen,
I have experience with both Chinese academia and Western (American) academia.
I can come to terms with the idea of moonlighting professors from the American point of view; I saw many mercenary professors, constantly weighing offers from other universities/labs/private industry, while also pursuing personal ventures.
I personally do not know a single moonlighting professor in Chinese academia. All of the professors I know in China are very loyal to their institutions; they see their status as professors, or as “intellectuals”, as something close to being sacred. Hopefully you’re not going to ask that I prove Chinese culture and American culture have very different views of “teacher” and “student” relations.
July 21st, 2008 at 4:59 pm
Buxi – thanks for following up with the their stories. While crisis makes the headlines, resolution often goes to the back pages, if at all.
The right solution is for the university to write a letter of agreement for Teng to continue to contribute to society, and to the quality of education in the university, by being a “rights-defense” lawyer.
The percentages argument is not productive as this is at its core a professional employment contract. In such cases precedence and common practice is a guideline and not binding. I bet Teng got the letter he needed in the past, so why not now?
Anyhow, we can only speculate why Teng didn’t get his letter. It may have nothing to do with Tibet or the CCP. It could be that Teng ruffled the feathers of the university president on some other issue. A guy willing to defend unpopular causes is likely to have stepped on a few toes. Yet, this only makes the moral obligation of the university more apparent.
July 21st, 2008 at 5:15 pm
Much of what I have had to say about Teng assumes that his conduct as a professor and lawyer is above reproach, aside from being unpopular. A rights defense lawyer being unpopular in some circles would be just par for the course.
How does the CUPL reconcile refusing to give Teng a letter to allow him to participate in the real application of Government by Law with hosting the 3rd session of the forum of Government by Law?
The question of loyalty is interesting Buxi. It seems to be a sentiment that comes from a more recent history than something more enduring of Chinese culture. I don’t have my copy of the Analects handy, but my impression is that morality plays a huge role in how an administration/government and how a gentleman ought to conduct themselves. Loyalty is important but if the ruler lacked morality, didn’t Confucius leave for another jurisdiction?
In a sense, I have the feeling that the CUPL’s action is more “Corporate American” than “Chinese”. Shouldn’t the CUPL respect its scholars more?
July 21st, 2008 at 5:21 pm
@Buxi
You do not know of a single moonlighting professor in China?
Moonlighting Income. To distinguish it from bonuses paid within the university, income earned outside the university is referred to here as “moonlighting” income. Since the mid-1980s moonlighting has been on the rise as individual professors have taken advantage of the central government’s more liberal policies toward earning supple- mental income. According to some government economists, the policy allowing academics to moonlight is cheaper for the government 14. Of the 10 universities visited, only one reported different hourly rates for time contributed to training programmes. The others had a flat rate irrespective of the rank, age or administrative title of the contributor than an across-the-board pay increase for university employees and tends to benefit the most competent faculty members.ls On the negative side, university and government officials admit that moon- lighting tends to benefit only those academics with commercial skills and can erode the quality of teaching and research.
Todd M. Johnson. “Wages, Benefits, and the Promotion Process for Chinese University FacultyWages, Benefits, and the Promotion Process for Chinese University Faculty.” The China Quarterly, No. 125 (Mar., 1991), pp. 137-155
July 21st, 2008 at 5:29 pm
I’ll have to agree with Mutant Jedi (#15) on this one.
Having teaching staff take on difficult, high-profile cases could be an asset to a law faculty (all you 美国佬 will have to supply the references, but I think of people like Alan Dershowîtz and so on).
As for “moonlighting/mercenary professors” (quite pejorative terms, btw), this is not necessarily a disadvantage as it stimulates competition and communication between universities and the private sector and makes sure that academe doesn’t completely lose its contact with economic realities. From my own (very limited) experience I did not find it quite as unheard of in China as Buxi makes out. I’m thinking, for example, of universities like Qinghua (Beijing) and Tongji (Shanghai), in the fields of IT or urban planning/ construction. Why not in the practice of law?
Finally, here are two more paragraphs from the open letter of Jiang Tianyong (link above):
我呼吁北京市司法局再接再厉，继续纠正错误，立即恢复滕彪律师的律师执业证，立即通过谢燕益律师的年检注册！
我也呼吁北京市司法局以至中国司法部彻底纠正错误，废除完全没有法律根据、自我授权的律师年检注册制度！
I call on the Beijing judicature to persist in their efforts, to continue to rectify errors and immediately renew the license of lawyer Teng Biao and pass lawyer XieYili’s application for annual renewal of license.
I also call on the Beijing judicature and to the Chinese Ministry of Justice, to thoroughly correct mistakes and to abolish the unlawful and arbitrary system of annual renewal of license for lawyers.
July 21st, 2008 at 5:46 pm
The question about moonlighting is interesting; academic culture in China is obviously changing just as quickly as everything else… ultimately, I’m not in a position to discuss or defend whoever is in charge at CUPL.
Perhaps they’re guilty of not living up to their moral responsibility… but I’m not quite ready to judge without hearing the other side of the story and seeing the statistics I mentioned. For those not familiar, you might find ESWN’s discussion of professor Jiao Guobiaoto being “kicked out” for his political views to be interesting.
@zuiweng,
Yes, there is a more detailed article from Jiang Tianyong discussing his call for the end of the license renewal process. You can see it here.
It seems like a more technical legal debate than a general one, so I wasn’t sure how to process it. But I was thinking about translating it for a future blog post. In this second article, by the way, he mentions that Xie Yili has also received his license renewal (as of July 3rd?). Teng Biao is really the only one who has not, apparently.
July 21st, 2008 at 5:50 pm
Is this thread about human right or about “illegal” legal system in China ?
July 21st, 2008 at 5:52 pm
That slipped right by me… an annual renewal of license for practicing law threatens any sort of security a lawyer may feel in practicing law. Pragmatically, who would want to be a defense lawyer? Who would dare do anything controversial that could cost them ability to renew their license?
When talking about legal reforms in China, the establishment of an independent self-regulating professional association for lawyers ought to be one of the priorities.
July 21st, 2008 at 5:59 pm
@MutantJedi
Exactly. That is why this entire post about a “victory for rule of law” is a red herring. If you can’t practice law for fear of government reprisal, you can’t practice. Simple as that.
July 21st, 2008 at 6:01 pm
Some “terrorist lawyers” who decided to defend Al Qaeda, such as Lynne Stewart, were persecuted by the US government via indictment and disbar:
http://news.google.com/archivesearch?q=Lynne+Stewart+disbar
July 21st, 2008 at 6:02 pm
@Buxi – All the professors I knew at NUAA, NUFE, South-East, Nanjing U, and Nanijng Normal had at least one source of income outside of the university – I thought this was a fairly common feature of academic life in China. The majority of my lecturers at CCLS, Queen Mary (University of London) were practising solicitors or barristers – of the two who weren’t one was more than 70 years old, and the other was busy writing a book. I’m very curious indeed how you could say you don’t know of any academics who are working outside their university positions.
However, the issue at hand is not whether it is a good thing for academics to work outside their universities, but whether Teng Biao is being subjected to undue pressure through application of a rule that is rarely – if ever – enforced. I would say it appears so.
As for saying he should resign his position and join a firm specialising in human rights cases, this would be like you quitting your day job and trying to make a living through this blog. These lawyers were offering to work pro bono, not for pay.
July 21st, 2008 at 6:07 pm
@MutantJedi,
Which is why in Jiang Tianyong’s words, and (note Hemulen) not my words, “this is a victory for the rule of law”. Defense lawyers who take on controversial cases must have the legal right to have their license renewed just like all other practicing attorney.
As far as annual renewal of licenses… what’s the big deal? You are aware that even drivers’ licenses must be renewed and validated (in person) on an annual basis in China? It looks like for legal licenses, lawyers in Beijing can do it online… easier than their drivers license.
July 21st, 2008 at 6:10 pm
@FOARP,
The fact that the market doesn’t support his work is at best a moral issue, not a legal one. I don’t see why CUPL should be legally responsible for paying the tab for his pro bono work.
There are tens (if not hundreds) of other lawyers in the 维权 movement in China, all of whom (now) with active licenses. Why should Teng Biao’s case define the status of lawyers resisting the government and defining rights in China?
July 21st, 2008 at 6:18 pm
Charles Liu,
http://en.wikipedia.org/wiki/Lynne_Stewart
Your point underlines a response I had in mind to Wahaha’s question about human rights/legal reforms. The two issues are coupled. I would suggest that legal reform progress leads human rights progress. Similarly, erosion of legal system leads human rights degradation.
July 21st, 2008 at 6:30 pm
@Charles Liu – Was this thread about the US? For the record: I think what the United States government is doing with its trials in Guantanamo is despicable. The acquisition of information through torture is a war crime, trial without proper representation is a farce, removing the right to see the evidence against you is a shame. The fact that the current US administration is also trying to intimidate its opponents through dirty tricks campaigns and use of the ‘no fly’ list is no surprise: these people (Bush/Cheney/Ashcroft/Gonzalez/Yoo/etc. and the people who carried out their instructions) know that what they have done constitutes war crimes, and they will do anything to prevent this becoming generally known. It is my true hope that these men will one day face trial for what they have done in the US: if not, they had better not ever visit any country which recognises the jurisdiction of the international criminal court and has not signed an article 98 agreement with the US after they leave power.
That said, I have never visited the US, but I did live in China for some time and may very well go back there to work within the next few years. US transgressions against human rights are to be deplored as roundly as those which occur in China, but I have more reason to be bothered by those in the PRC.
July 21st, 2008 at 6:32 pm
“I would suggest that legal reform progress leads human rights progress. Similarly, erosion of legal system leads human rights degradation.”
That is definite true, but how long has the reform of legal system been in China ? Westerners can keep talking about that, but it will take at least 30 years before vast majority of chinese people can understand the real meaning of “legal” and “illegal”.
There was a story about 8 chinese beat a guy (who tried to steal something from them) to death in Mexico, and told polic in detail how they beat until their lawyer stopped later, they didnt even know the result of that.
July 21st, 2008 at 6:34 pm
“Was this thread about the US? For the record: I think what the United States government is doing with its trials in Guantanamo is despicable.”
I think Charlie Liu tried to say ” ANYONE, in ANY country, against ANY government, will be suppressed one way or another.” and Someone tried to make an universal issue sound like an issue that only happened in China.
July 21st, 2008 at 6:39 pm
@Buxi – Once again, I am not saying that his university is legally obliged to allow him to work outside the university at the same time as doing pro bono work, but that their application of the rules in this case constitutes intimidation. Is it a victory for the rule of law? Possibly in the case of Jiang Tianyong, but only if he is actually given the chance to represent the Tibetan activists (assuming, of course, they wish it).
July 21st, 2008 at 6:41 pm
Unlike Hemulen, I do think this story is a victory for the rule of law.
As I’ve mentioned, I just don’t know the whole story for Teng – only Teng and the CUPL know. So, my comments on his situation are hypothetical – dealing with more the ideals involved than with Teng himself.
I also don’t know how the annual license work for lawyers. Is there an exam? Or just some paperwork. Evidently politics has a role in the process. And that’s what the big deal is. As long as a government office is the clearing house for licenses, the process will be political.
No. I didn’t know drivers license have to renewed each year… seems excessive. Especially the in person part. However, I think a lawyer license is a bit more political than a driver’s license. And I feel that there is a difference in the social impact of the two licenses. So, I wonder why you would mention one as a point regarding the other. 🙂 Being as easier than getting a driver’s license is not a plus.
At least the Americans had to put someone like Lynne Stewart in jail to disbar her…. okay. perhaps there is a plus to the annual license scheme. 🙂
I absolutely agree with you on: “Defense lawyers who take on controversial cases must have the legal right to have their license renewed just like all other practicing attorney.”
July 21st, 2008 at 6:47 pm
Jiang Tianyong, living in Beijing, asked to be the lawyer of rioters in Lhasa ? That is like a lawyer in New Yorker who is gonna defend OJ in LA.
1) Did the rioters ask for his help ?
2) if he is allowed to defend those rioters, which international human right group will pay for his expense ?
3) are there other cases near Beijing (like police violence) ?
July 21st, 2008 at 6:53 pm
@MutantJedi,
From what I’ve been able to google up, it looks like it’s supposed to be routine paperwork. And obviously, attaching a political litmus test to that would be a major flaw in “rule of law”.
@FOARP,
I think if activist lawyers were allowed to defend the Tibetan activists (assuming they wanted it), it would be another legal victory. The lack of that victory doesn’t take away from the progress involved in the licensing issue, especially since it was only a month ago that some around the world trumpeted the *lack* of progress.
And I have a feeling that even if Jiang Tianyong was allowed to represent the Tibetan activists, it wouldn’t be a good enough victory for some who believe they should be declared innocent while Mao Zedong was found guilty in absentia…
July 21st, 2008 at 6:59 pm
@Wahahaha – Here in the UK lawyers have represented the IRA, Al Qaeda operatives, Soviet spies, assassins, newspapers accused of libelling the government, traitors like William Joyce, fascists like Oswald Mosley, Suffragettes, the men involved in the Iranian embassy siege, the men who organised the Lockerbie bombings, politicians from opposition parties etc. etc. etc.
I cannot think of one example of a case in which their legal representatives have come under undue pressure in this fashion. Even the US government only does so through back-door means through methods like having their critics placed on the no-fly list, and refusing to give interviews to newspapers which publish stories which are unfavourable to them. This kind of intimidation of lawyers is far from a ‘universal’ problem, it happens in many countries, but these countries are not generally thought to be ones in which the rule of law is very strong – places like North Korea, Myanmar, Indonesia, Vietnam, Zimbabwe, Cuba, Columbia, Venezuela, Belarus, and Russia. Is this the company you want China to keep?
The specific case of Lynne Stewart appears to have involved her passing information from the defendant to his associates on the outside to resume a terrorist campaign. The evidence against her was collected via a methods which make its admisability questionable, but the transaction does appear to have taken place. In her own words: “I inadvertently allowed those with other agendas to corrupt the most precious and inviolate basis of our profession – the attorney-client relationship.”. I do not think this prosecution was a politically motivated attempt to prevent defendant from having representation.
July 21st, 2008 at 7:02 pm
@Wahaha –
Or British lawyers saving an American man from death row:
http://www.guardian.co.uk/world/2004/aug/28/uk.usa
July 21st, 2008 at 7:05 pm
@Wahaha –
1) Will the Tibetans even be given an open trial?
2) No funding is required, pro bono work is all done in the lawyers spare time – presuming they still have a job that is.
3) Are there any lawyers who are willing to represent these Tibetans in Tibet?
July 21st, 2008 at 7:05 pm
In China, there are lawyers representing anyone on court.
To my knowledge, there were lawyers who defended 3.14 Rioters, and there were surprised that no1 was sentenced to death penalty.
July 21st, 2008 at 7:14 pm
Wahaha,
My feeling on legal reform in China is not something that can be fixed tomorrow. Or even desirable to be fixed tomorrow. Like the topic of democracy, too fast can lead to more problems than benefit.
On legal reform, I don’t even know the situation well enough in China to say with authority what needs to be fixed. So, I grab on to principles. In this thread, the protection of defense lawyers from political interference discussed. FOARP #32 makes Charles Liu’s point #27, which underlines the importance of Jiang Tianyong’s victory for the rule of law.
Your story of the 8 Chinese guys in Mexico is interesting. I’d add the story about the guy that is accused of killing the Canadian girl in Shanghai. In both cases, we find the alleged culprits confessing to the crime. From what little I know of Chinese legal system, confession might be a good idea. I’m guessing that coming clean quickly can help you do better in court. If I’ve learned anything from watching CSI, in a Western context, don’t say a word until you call your lawyer (the more expensive, the better). With my Western eyes, confessions are suspect. Were they coerced? Were the people tricked? Were they denied legal counsel. So, from a Canadian perspective, I don’t know if the guy accused of the girl’s murder did it or if the system just found itself a fall guy from just a confession. But would it be from a general Chinese perspective, basically sufficient for guilt that the guy confessed?
As you allude, part of the process of legal reform is making it work with its cultural context.
July 21st, 2008 at 7:27 pm
FOARP,
About Lynne Stewart… That’s why I linked in the wikipedia article. Her case is a bit complicated. Yes, she did mess up technically. But the message, as per her supporters, “that the prosecution for zealous defense tactics could cause attorneys to become fearful of defending alleged terrorists and deprive individuals of their constitutional right to due process,” is still valid.
July 21st, 2008 at 7:35 pm
@FORAP,
I dont know if there were given open trial. If it was not an open trial, I dont see why it was cuz it was a trial about Tibetans. I dont see why chinese government should allow west report in court, I dont think judge in would enjoy seeing a reporter from XinHua in a trial about Northern Ireland..
I dont know how long the court would last, but the expense of travelling and motel is not cheap. We know lawyers in China dont make much money like in US.
I was asking if those rioters knew who Jiang Tianyong was, I dont think they know.
July 21st, 2008 at 7:46 pm
MutantJedi,
I think that when media and politicians in West talk about legal reform in China, they sound like ” We have a library of books about legal systm, why dont you just borrow our books and follow the instructions in the books ? ”
We know the famous or infamous storys of western cowboys in USA. After hundreds of years of society ruled by law, people still solved the problems with their own hands, that is the case in China. Why cant westerners understand that legal reform takes decades, especially in a country like China which had no real legal system before in her 3000 years of history.
Here is another story in China : a woman’s father got a subpeona from court, the father thought his daughter was too tired, so he didnt tell his daughter about subpeona. You know what the subpeona was for, it was for divorce !!!! Cuz of her absence, the court granted the husband the divorce he wanted and the woman didnt find that out until about several later.
July 21st, 2008 at 7:59 pm
@Wahaha – A judge would not care who covered the trial if it was an open one, it would not be a fair trial if it was. It should be noted that terror trials necessarily take case partly in camera (i.e., in closed session) to protect the identity of secret informants. Under the ‘Diplock courts’ (and their equivalent in the Irish Republic) terrorist suspects were also denied jury trial to prevent intimidation of the jury. Some cases do require special circumstances, but it is a long way to go from this to denying someone representation or the ability to make their case and protest their innocence.
No-one was asking that this man’s employers should pay for his work, and I doubt that OJ knew who Johnnie Cochrane was before his trial – he just asked for the best defence lawyer that money could buy him – wouldn’t you if you were in his shoes?
July 21st, 2008 at 9:02 pm
You think those monks and rioters could afford the travelling fee and motel for their lawyers.
What is open trial ? Open to west media is called open, otherwise it is not open, and unfair trial ? There are thousands of trials in China each years. If west tries to ridicule China’s legal system, there are lot of them they can go, why did they pick this one ? for what special reason ?
July 21st, 2008 at 9:10 pm
@Wahahaha – I wasn’t aware that ‘the west’ had singled these trials out for special criticism as opposed to all other trials with a political dimension – although it might be worth comparing the punishments handed down to those given to Han in similar circumstances. If what you mean is “Why is FOARP etc.” then my answer is: “because it would allow us to know whether the Lawyers are actually being allowed to represent whoever they like”.
By the way, lawyers doing pro bono work pay their own expenses. And I might ask whether you think the trials were open?
July 21st, 2008 at 9:11 pm
@Wahaha,
I personally think the trials in Tibet should have been open. They should have broadcast everything online. I believe China will get there some day, but it is definitely not there yet. The Chinese legal system, just like everything else, is evolving gradually.
A lot of people think the trial in Shanghai of Yang Jia, for example, should also be open. I hope that’s the case.
There’s no reason legal tries should be kept secret, unless “state secrets” are really involved.
July 21st, 2008 at 9:18 pm
I dont know if the trial was open or not. Actually I think the sentence was determined before the trial, and the reason no1 was sentenced to death was cuz of Olympic.
My point is that this is just a trial like lot others in China, but through west media, it became a report about the problem in Tibet. Give me a trial about a corrupt governors, I will wholeheartly talk about the legitmacy of the trial and legal process.
July 21st, 2008 at 10:01 pm
Wahah: “give me a trial about a corrupt governor”
Well, here’s one where a “nail house” owner sued the governor:
http://bbs.cenet.org.cn/html/board92531/topic105727.htm
Here’s another where a farmer sue the govnor ovre eminent domain, and won:
http://www.tianya.cn/publicforum/Content/develop/1/114407.shtml
Here’s a corruption trial, and a list of provincial heads indicted:
http://cqsb.hsw.cn/gb/cqsb/2005-05/26/content_1913240.htm
July 22nd, 2008 at 3:31 am
My question would not be about CUPL’s employment contract with Teng; it would be whether, irrespective of the contract, he’s been allowed to moonlight in years past. If he was, without CUPL enforcing the letter of the contract in the past, then one has to wonder why the university is suddenly enforcing it now. Even if they’re legally so entitled, the timing would smell extremely fishy.
My other point is, why would the government focus on these two lawyers. I mean, aren’t there public defenders in China? IF these two didn’t do it, I presume someone else is defending the dissidents, the Tibetan rioters, and the like. So what’s the big deal if 2 guys volunteer to provide the defense. THe hallmark of a law-abiding society is that those who stand accused can avail themselves to a thorough and vigorous defence, such that society can be confident in the outcome if the accused are convicted. Otherwise, it’s just a kangaroo court.
July 22nd, 2008 at 3:37 am
To Wahaha:
“I dont think judge in would enjoy seeing a reporter from XinHua in a trial about Northern Ireland..” – I don’t know about Northern Ireland, but in Canada, I’m pretty sure your reporter can go into any courtroom he or she pleases, so long as it’s not a closed trial, just like any Canadian could. That includes civil and criminal cases. In fact, our courtrooms have galleries for the public just for such a purpose. If you propose to live in a society with the rule of law, their practitioners should expect to be subjected to public scrutiny. So if and when a reporter from CBC (Canadian national media) can hang out inside a Chinese courtroom, you let us know.
July 22nd, 2008 at 3:40 am
http://www.nytimes.com/2005/12/24/nyregion/nyregionspecial3/24pensions.html?ex=1293080400&en=6ea96465eae9c999&ei=5090&partner=rssuserland&emc=rss
July 22nd, 2008 at 3:55 am
http://www.aflcio.org/issues/politics/unions.cfm
___________________________________
http://online.wsj.com/public/article/SB119042881848436017-GyczAzRyB8yy0cWPU5064beCmKA_20080921.html?mod=rss_free
“This is the all-or-nothing election for them. They can’t have another four years of not having the White House,”
________________________________________
http://www.themonitor.com/onset?id=1158&template=article.html
“Should the City Charter be amended to require that outside arbitrators be the final decision makers in certain labor contract issues affecting city employees and the city budget rather than having the decision made by your elected mayor and city commission?”
______________________________________________________
Read following, then tell me about what you think the situation of deficit in almost every states in US will improve or get worse if Obama is elected.
http://thecaucus.blogs.nytimes.com/2008/07/02/major-union-maps-general-election-strategy/
On top of its $75 million budget for the election, the union plans to spend an additional $10 million on an effort to hold politicians – both Republicans and Democrats – accountable for their campaign promises to workers and organized labor
July 22nd, 2008 at 4:42 am
@SKC,
did you read my post # 51 ?
Let us talk about what would be on new york time :
Opening with “20 tibetans , ….”
Conclusion (implied) : cuz they are tibetans, …
July 22nd, 2008 at 4:57 am
If all trials are a farce in China, then certainly that needs to be addressed, as many have commented on this blog. But a governor on trial should be on the same playing field as a Tibetan rioter, or a Weng’An demonstrator, etc etc.
July 22nd, 2008 at 5:08 am
@S.K. Cheung,
Well, now I’m in the some what strange position of telling you that things in China are far worse than you imagine…
The legal system in China is easily as bad as a “kangaroo court”. In China’s defense, I’ll point out that the oldest practicing lawyer/judge in the system is probably only 45-50 years old, and there’s only a hand full of them.
Until the “opening up and reform” period started in 1978, China effectively had no objective legal system of *any* kind. In fact… it’s worse than that. For more than a decade, China was running under an organized campaign that called for complete disrespect of all tradition, regulations, and the opinion of elders + educated experts. You could say accurately that China was running for a decade under near total anarchy.
So, China is still trying to recover from that. I remember you were surprised Mexico just recently implemented some standard legal practice (can’t remember what now off hand… presumption of innocence?). China’s legal system is probably decades behind that of Mexico’s.
So, when I celebrate this “victory” for the rule of law… we’re talking a very, very rudimentary win indeed.
July 22nd, 2008 at 5:45 am
To Buxi:
thanks for the background. That’s enlightening for me, and kinda scary. BTW you recall correctly about my comments re Mexico. The kicker is that, while law is now passed requiring presumption of innocence, the timeline for full implementation nation wide is 2016, I believe. Makes me think twice about going to Mexico.
July 22nd, 2008 at 6:00 am
S.K.Cheung,
Building a new legal system from the ground up is much more difficult, in my opinion, than establishing a “government”.
A government is a flexible, live thing… it consists of a small group of people paid to solve problems. Even if you only have 100 reasonably intelligent people in your country, you have enough to at least do the basics of law-making. And it doesn’t even cost you that much.
But a legal system, a true legal system, is supposed to be (more or less) an inflexible, dead thing. You have to setup rules that are fool-proof, and you have to make sure that something like 1 million (poorly paid) police officers, a few hundred thousand (poorly paid and inexperienced) judges + lawyers, implement the system the way you want them to…
No matter if we’re talking about Mexico, India, or China, there’s a reason why it’s hard to get right. And China literally started from zero 30 years ago.
July 22nd, 2008 at 6:22 am
To Buxi:
as long as Chinese people put a premium on guanxi, on relationships, and an emphasis on “connections” as a better means of solving a problem, such a mindset seems contradictory to establishing a legal system that is predicated on the neutral impartial application of the law.
China’s got special economic zones, and cities with little democracy experiments. Maybe they need to establish legal centers of excellence (and not just law schools), to introduce the practice of the rule of law. And maybe eventually, such experience will spread out to the boondocks, much like their other experiments 🙂
July 22nd, 2008 at 5:10 pm
@S.K.Cheung,
Well, if you look again at the reforms being outlined in Shenzhen… it sounds more or less like that. They’re talking about copying lessons from Hong Kong in design of its legal practices + anti-corruption. I believe Taiwanese and Hong Kong lawyers have all been licensed to practice on the mainland as well.
So, just like the mainland “learned” capitalism with the help of Chinese from outside the mainland, I think legal practices will (hopefully) evolve the same way. It’s a little more difficult though in law. A capitalist shoe-maker can start making money with a building, a road, an export license, and a bank account. For a lawyer to make a difference, they really need a *system*. They need good trial judges, good appeal judges, good lawyer association…
perspectivehere and the other lawyers who are posting here should be real patriots and start a solid practice back in China. 🙂 Besides, in Beijing/Shanghai they bill NYC/SF rates… 🙂