Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Monday, June 25, 2007

What the right hand giveth, the left hand taketh away

I read with interest this report carried by Chinalawinfo.com about a draft of amendments to the Law on Lawyers (律师法). The draft is undergoing its first reading by the 28th Session of the 10th NPC Standing Committee. One provision states: "Lawyers shall not be made legally liable for opinions uttered in court as an agent or in defense" (律师在法庭上发表的代理、辩护意见不受法律追究). Intimidation and persecution of lawyers by police and prosecutors have become the subject of a great deal of publicity in recent years, and this is designed to provide some comfort to lawyers who may find themselves prosecuted for saying various things that make the police or the procuracy unhappy. But will it help? I'm skeptical for two reasons.

First, the exemption is immediately followed by a huge loophole: "Except for utterances that threaten national security, maliciously slander others, or seriously disrupt courtroom order" (但是,发表危害国家安全、恶意诽谤他人、严重扰乱法庭秩序的言论除外). Does anyone seriously imagine the police or procuracy will have any difficulty, if so inclined, in finding (for example) that casting doubt on the truthfulness of an opposing witness constitutes malicious slander?

Second, it does not appear that prosecutors rely heavily on speech-related offenses to persecute lawyers in the first place, so even without the exception, the rule would solve a problem that doesn't really exist. In a recent study of criminal prosecutions of lawyers, Fu Hualing of the University of Hong Kong's Faculty of Law collected 70 cases from 1984 to 2006 in which lawyers were tried for criminal offenses. Look at this table from Dr. Fu's paper summarizing his findings:

Table_5_2

Virtually none of these offenses could be committed by courtroom speech; in fact, the only plausible candidates (which were rarely prosecuted anyway) are "disturbing public order," "leaking state secrets," and "criminal libel": precisely the offenses to which the proposed immunity does not apply. The big stick (falsification of evidence) and the two medium-sized sticks (covering up crimes and taking bribes) are unaffected by the proposed immunity.

Conclusion? Lawyers should hold their applause.

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