Defense lawyers in China face an uphill battle in the fight for basic legal rights

Defense lawyers in China face an uphill battle in the fight for basic legal rights

Professor Sida Liu. (Photo: John Wyman/ UCLA.)

A recent crackdown against human rights attorneys in China was directed against the "rights defense movement" that seeks to defend the basic legal rights of defense attorneys and their cleints.

by John Wyman (UCLA 2017)

UCLA International Institute, October 22, 2015 – Early on the morning of July 9, 2015, Chinese defense attorney Wang Yu was taken from her home and imprisoned. Her colleagues spoke out against the raid and spread the word on social media as quickly as they could, but the next day many of them were detained themselves in a nationwide crackdown resulting in over 200 arrests.

The crackdown was a swift strike at the “rights defense movement,” a growing political movement within the Chinese legal profession aimed at defending the basic legal rights of defense attorneys and their clients under the Chinese constitution. Although the majority of those arrested were human rights lawyers, their frustration with the legal system is shared by many Chinese attorneys who defend clients against criminal charges. Sida Liu, associate professor of sociology and law at the University of Wisconsin-Madison, recently discussed the motivation of these attorneys at the Center for Chinese Studies, where he shared research conducted for his upcoming book (“The Politics of Defense: Lawyers and Criminal Justice in China,” Cambridge University Press, co-authored by Terence C. Halliday).

Many defense lawyers in China have begun to “politically mobilize,” said Liu, which he defined as turning their efforts towards creating change within the legal system. But given a legal environment where it is commonplace for a defense attorney to be arrested in the normal execution of his or her profession, how is it possible to create that reform? How do these “politically liberal” lawyers defend themselves from retribution? From 2005 until 2015, Liu and Halliday conducted 329 interviews with various members of the Chinese legal profession aimed at answering these questions. The authors found that how “politically embedded” attorneys were determined both how they fought for change and how they defended themselves from government retaliation.

What does it mean to be “politically embedded” in the Chinese legal system?

According to the two authors, “politically embedded” attorneys have a larger network of support within the government and the media. They tend to have been educated in the more elite universities in China, have more experience in the legal profession and are almost exclusively found in Beijing. In a sense, they are “protected” by their professional networks, prestige and/or political connections, but often lose that protection when they leave the geographical bounds of their network. This group, called “progressive elites” by the authors, attempt to drive change through political connections and the traditional functioning of the legal system.

In contrast, attorneys who are not politically embedded tend to be found in the provinces, come from less prestigious educational backgrounds and do not benefit from the protections enjoyed by their Beijing colleagues. These attorneys are forced to resort to more inflammatory methods to promote change. Many adopt a style of “die-hard lawyering,” which involves passionate, high-energy defense in the courtroom (often broadcast to social media), relentless attacks on procedural errors committed by prosecutors or judges and/or demonstrations and protests outside the courtroom. Often the attorneys in this group have no political protection, or they rely on international media attention to protect themselves from retaliation.

The results of the two groups, said Liu, are either “long-term incremental change” or “short-term heroic sacrifice.” Progressive elites seek to create change over a long term, relying on the traditional bureaucracy and deep political networks. Less-embedded attorneys tend to sacrifice themselves in the process of criminal defense work, often arrested and disbarred for their actions, in the hope that the international community or media attention pressure state authorities to produce desired changes in the legal system.

Political mobilization likely to continue

The Chinese government’s strong response to activism by the legal community was more likely the beginning of a new wave of mobilization than the end, said Liu. Increased popularity and coverage of “die-hard lawyers,” the arrests of so many high-profile defense attorneys and ever-widening ranks of new, politically motivated defense lawyers will most likely inspire a wider response from the legal community both within and outside of China. The real question, said Liu, is how long the Chinese legal system can resist mounting pressures for change.

Published: Thursday, October 22, 2015