Tuesday, September 24, 2013

Justice Ministry to Silence Lawyers with New Confidentiality Rules

China University of Political Science and Law Professor Wang Jianxun. Photo credit: sohu.com

Months before China’s highest court and prosecutor prescribed imprisonment for online posts that got too popular, the Ministry of Justice introduced information controls in draft regulations targeting criminal defense lawyers. Circulated to province-level judicial administration departments earlier this summer, the rules were met with criticism from those in the legal profession.

Defense lawyers voiced concern that certain provisions would impose upon them absolute obligations to keep various case details confidential. Compared with the Supreme People’s Court’s judicial interpretation of the Criminal Procedure Law that barred the use of social media in the courtroom, the Ministry of Justice rules go further. While the judicial interpretation only covers the conduct of lawyers inside the courtroom and, specifically, their ability to reveal trial proceedings, the rules impose limitations on things like sharing case information with the relatives of defendants or accessing or reproducing court records. As the body mandated with the supervision of lawyers, the ministry also has more direct weapons (e.g., the approval of lawyer licenses) to use as punishment against those who fail to abide by its rules.

The main concern, explains China University of Political Science and Law Professor Wang Jianxun, is that the rules are aimed at preventing defense lawyers from using the media and the Internet to raise public awareness about individual cases that may become miscarriages of justice.

In recent years, Chinese lawyers have increasingly made public details of ongoing criminal cases involving procedural irregularities or other types of injustice. There is a perception among some, however, that such mobilization of public opinion interferes with courts’ ability to adjudicate cases independently and ought to be curbed in an effort to promote rule of law.

But as Professor Wang notes, in an article published by Caijing (translated below), the Chinese judicial system is plagued by insufficient transparency and imperfect attention to procedural rights. Moreover, “coordination” between judicial and law-enforcement bodies under the party’s guidance limits, rather than promotes, judicial independence. Under these circumstances, publicity and public opinion offers an important channel through which courts, prosecutors, and police may be held accountable for their actions in the criminal process. Imposing an absolute ban on revealing case details would further limit lawyers’ ability to defend their clients and could potentially result in sanctions for those lawyers who violate these provisions.

Lawyers’ Defense Rights and the “Cutthroat” Bill

Wang Jianxun
Caijing, July 29, 2013

In the wake of the promulgation of rules related to the new Criminal Procedure Law by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security, the Ministry of Justice (MOJ) has also drafted a consultation version of Regulations on Several Issues Concerning Criminal Defense by Lawyers, regulations specifically aimed at regulating the criminal defense activities of lawyers. These regulations concern issues related to the appointment of criminal defense lawyers and their abilities to meet with clients, read case files, and carry out defense work. Many provisions tend toward restriction of lawyers’ defense rights, among which a widely criticized one is the requirement that lawyers keep case information confidential.

According to Articles 18, 27, and 42 of these regulations, defense lawyers must not leak notes, audio recordings, video recordings, or photographs to relatives of criminal suspects or defendants or use case-file documents or notes or audio- or video recordings made during the trial for purposes other than defense in that case. Also, any audio- or video recording of the trial or requests to view or reproduce audio- or video recordings of the trial made by the people’s court must first get the court’s approval.

What do these provisions mean, ultimately? Will they constrict the already narrow space available for criminal defense even further? How will lawyers’ criminal defense rights be protected?

There’s no doubt that criminal cases are special, and it’s understandable that lawyers’ activities in criminal litigation be subject to certain regulation and restriction. But the problem is that restrictions on lawyers’ activities ought to be premised on protecting their rights to engage in defense and motivated by protecting the rights of criminal suspects and defendants. After all, the entire system of criminal defense was set up to protect the rights of these persons, and to protect the rights of lawyers to engage in defense is also to protect the rights of suspects and defendants.

In this respect, there is nothing improper about requiring criminal defense lawyers to fulfill certain confidentiality obligations, but complete or unconditional requirements that lawyers keep case information secret are inappropriate.

If in certain special instances secrecy does not benefit a lawyer’s exercise of defense rights or benefit protection of the rights of a criminal suspect or defendant, then there is no reason to require the lawyer to fulfill this kind of confidentiality obligation. For example, the MOJ regulations bar defense lawyers from leaking notes, audio recordings, video recordings, or photographs to relatives of criminal suspects or defendants. Does this mean that defense lawyers may not report information about the case or give a progress report to those relatives? If those things are prohibited, how are they supposed to coordinate on behalf of defending the suspect or defendant?

As another example, the MOJ regulations also bar lawyers from using case documents or notes or audio- or video recordings of the trial for purposes other than defense in the case at hand. This provision is intended to prevent lawyers from revealing information about cases to outsiders.

The question is: what is the legal basis for this sort of prohibition? If a defendant’s confession is coerced through torture, can’t a lawyer notify relatives of audio or videotapes or make them public? And how does one define “other purposes”? Does discussing details of the case with relatives of a suspect or defendant count as “other purposes”? Does being interviewed about a trial count as “other purposes”? Does publicizing details of the trial online count as “other purposes”?

There is widespread concern among lawyers that these provisions barring defense lawyers from revealing case details will in fact block them from using the media and public opinion to prevent miscarriages of justice. In a society where rule of law is imperfect and the judicial process is not independent, there is already limited space for criminal defense. The rights of lawyers to engage in criminal defense work are unable to receive effective protection, and the rights of criminal suspects and defendants are often violated. For proof, just look at the frequent occurrence of miscarriages of justice and the jailing of some criminal defense lawyers.

If one says that the confidentiality responsibility of lawyers in societies with rule of law does not worry people because of procedural justice, then in a society with imperfect rule of law this kind of confidentiality responsibility has the possibility to deny a wrongly accused criminal suspect or defendant their final hope of obtaining justice.

In fact, when we look at the level of practice, in a society where the judicial process is not independent and procedural justice is not made manifest, the act of a lawyer revealing case details will often enable an unfair case to turn itself around and either prevent or remedy a case of injustice due to false evidence or errors in the law.

Cases like the “Beihai Case” in Guangxi or the “Xiaohe Case” in Guiyang were able to benefit to a considerable degree from timely publicity of case information by defense lawyers in order to avoid an even greater degree of judicial unfairness. As everyone knows, one of the chronic problems of the criminal process is insufficient openness and transparency. Even though trials and verdicts are supposed to be public according to the law, in practice both are regularly done in a non-open manner—especially those so-called sensitive or major and important cases. The court often makes excuses for refusing to try a case in public, whether it’s through the excuse that all observer permits have been distributed already, deliberately holding the trial in a small courtroom, or even making it impossible for the defendant’s relatives to observe.

In essence, these kinds of trials are secret trials, and not only do secret trials violate the law, they are also unfair. Even worse, in many criminal cases, defendants and their relatives don’t even get copies of the verdicts.

In this kind of situation with no open trials or verdicts, what is the crime in a defense lawyer making details of the case public? Otherwise, would there be any openness to speak of in the entire criminal process? Without openness, how can the fairness of the judicial process be guaranteed?

One of the signs of humanity’s becoming more civilized is the shift from secret trials to public trials and the shift from secret decisions to public decisions. Where there are secret trials and secret decisions, there is no reason to bar lawyers from revealing case details; otherwise, it’s unavoidable that defendants’ rights will get trampled upon.

Then if you permit lawyers to reveal case details as they please—especially in those cases that have not yet been tried—what do you do when these actions have negative consequences for adjudication or even judicial independence? Frankly speaking, this sort of worry is not without merit because public opinion has the potential to be a double-edged sword.

However, the way to go about resolving this problem is not to bar lawyers from revealing case details, which could possibly make it so that these cases of injustice have no remedy. Rather, the solution is to establish judicial independence in an institutional way and realize the procedural justice of the Criminal Procedure Law.

Were the judicial process to truly achieve independence, then even if a lawyer reveals details of a case or public opinion exerts pressure on the judicial process the judicial process would be able to handle it calmly, stand firm, and carry on. It thus wouldn’t have to worry about the improper influence of public opinion or the media.

Only a judicial system that is not independent will be vulnerable in the face of public opinion and [state] power.

The author is an assistant professor at China University of Political Science and Law.