Thursday, January 10, 2019

Administrative Penalties Against Lawyers: Another Strike Against Professional Autonomy and Religious Freedom

A conference organized by the Supreme People's Court and the Ministry of Justice on expanding coverage of defense lawyers in criminal cases. November 29, 2018, Hefei, Anhui province. Image credit:

The recent license suspensions of two lawyers in Yunnan have come under public scrutiny for the strange circumstances that led to the suspensions: the lawyers were making legal arguments based on government regulations and criminal statutes, with citation to relevant parts of the national constitution, on behalf of their clients. Their plaintiffs were Falun Gong practitioners accused of “using a cult to undermine the implementation of the law.” The case sheds light on a pattern emerging in the legal profession in China – the penalization of criminal defense attorneys, who represent clients in sensitive cases, with legally dubious accusations of professional misconduct.

“Disorder in the Courtroom”

On November 2, 2018 the Hunan Changsha Ministry of Justice issued administrative penalty decisions against defense lawyers Hu Linzheng and Zeng Wu, claiming that both lawyers “denied the nationally recognized nature of a cult organization.” In December 2017, the two lawyers appeared at the Yunnan Honghe Prefecture Kaiyuan City Court to defend their clients. Hu argued there was no evidence that Falun Gong is a cult and that Article 36 of the Constitution grants Chinese citizens freedom of religion, which at least theoretically limits the government from restricting the practice of Falun Gong. Zeng was faulted for arguing in court that there are “no direct legal regulations that determine Falun Gong is a cult,” and that his client “believed that Falun Gong is protected by the freedom of religion provided in Article 36 of the Constitution.”

The administrative penalty decisions concluded that Hu and Zeng’s conduct violated Article 49, Section 8 of the Lawyers Law of the People's Republic of China, which states that lawyers can be penalized for speech that severely “disrupts courtroom order.” The decision also cited Articles 2, 39, and 53 of the Measures on the Administration of Lawyers' Practice, which states that lawyers must support the Communist Party and the socialist rule of law, that lawyers’ conduct cannot disrupt the normal handling of legal cases, and that violations of these measures are punishable by Article 49 of the Lawyers Law.

The Changsha Justice Bureau suspended each of the lawyers’ licenses for six months, without providing evidence that Hu and Zeng had in fact caused disorder in the courtroom. Perhaps as an indication of how baseless the decision was, the Changsha Justice Bureau indicated that leniency was provided to the two lawyers when determining the penalty because both were “sincerely remorseful and cooperated with the investigation.”

A Catch 22 for Defense Lawyers

Defense lawyers in China assigned to politically sensitive cases are faced with a dilemma: either they deny representation to accused defendants (which contradicts the spirit of the central government’s goal to have “all criminal defendants in China represented by counsel”), or they take these cases and risk their careers.

Hu and Zeng’s clients’ alleged crime is an apparent reference to Article 300 of the Criminal Law, which criminalizes “using a cult to undermine the implementation of the law.” A defense lawyer would need to point out, as Hu did, whether the government provided any evidence establishing Falun Gong’s legal classification as a cult. Zeng’s argument similarly cast doubt on the premise that there is a law that categorizes Falun Gong as a cult. Although Falun Gong has been categorized as a cult by the China Anti-Cult Association, neither the State Council nor the Ministry of Public Security has recognized Falun Gong as a cult in their public notices.

In the penalty decisions, the Changsha Justice Bureau did not challenge the lawyers’ arguments, nor did it attempt to establish Falun Gong as a “cult” under Article 300. Hu and Zeng’s claims before the court were relevant legal arguments that a defense attorney would make in the course of representing a client. As such, it is difficult to see why a lawyer would be punished for bringing these arguments in a court of law and citing the country’s own constitution and the relevant legal facts surrounding the issue.

Contradictions with China’s New Criminal Defense Counsel Policy

The license suspensions of Hu and Zeng will likely discourage other criminal defense lawyers from pursuing perfectly legal and effective defense strategies. The Changsha Justice Bureau’s interpretation of the Administrative Penalty Act is well on its way to becoming another legal tool used to threaten defense lawyers. Experts on the legal profession in China have also criticized Article 306 of the Criminal Law (aka the “Big Stick 306”) which states that any defense lawyer who assists in a client’s false testimony, or “encourages perjury,” can be sentenced to three to seven years in prison. “Big Stick 306” has been abused by the police and the procuracy to “take revenge on those defense lawyers who dare to vigorously challenge the prosecution in court.”

In the wake of the “709” crackdown on rights lawyers in 2015 and without a better explanation for the Changsha Justice Bureau’s decision, the penalties against Hu and Zeng contradict the central government’s goal to advance the level of professional expertise in the legal system and to guarantee that criminal suspects in all cases have meaningful access to defense counsel. What’s more, on December 22, 2018 the Fujian Provincial Lawyers Association issued a set of rules that require defense lawyers in certain criminal cases to report their defense strategies prior to trial for approval by the provincial level justice bureau. Lawyers in China have spoken out against the rules arguing that it violates both the Criminal Procedure Law and the Lawyers Law. Without even a bare minimum of professional autonomy for criminal defense attorneys in China, there is significant danger that local officials will continue to categorize the reasonable efforts of criminal attorneys to defend their clients in court as “disruptive behavior.”