The fourth plenary session of the 18th Chinese Communist Party (CCP) Central Committee took place in Beijing in October 2012. The central theme of the plenary session was “rule according to the law.” Chinese President Xi Jinping (習近平) announced that: “The rule of law is a fundamental principle of governance” and the government must “ensure the people feel justice and fairness have been achieved in each legal case.”
From these two statements alone, one can see that China is pushing ahead with comprehensive legal reform.
From the East to the West, when a country goes through a period of legal reform and protection of human rights, lawyers always perform an indispensable role.
As prominent law academic Michael Landon has said: “Of all the 17th-century political events, nothing can surpass Britain’s ‘Glorious Revolution,’ and many common law lawyers took part in the political debate between 1603 and 1689. The vast majority of them stood in opposition to monarchical power.”
In the US, the non-governmental organization The Innocence Project has obtained redress for more than 300 wrongfully convicted people.
The project was founded in 1992 by two lawyers, Barry Scheck and Peter Neufeld. Philadelphia state prosecutors, in response to the project’s work, in April announced the establishment of a special unit to investigate disputed murder convictions, led by veteran prosecutor Mark Gilson.
In Taiwan, lawyers often play a decisive role in political and social movements.
Lawyers have a responsibility to assist in the creation of a society based on the rule of law and upholding law and order. They also possess the essential function of supervising the government, upholding the judicial system, and protecting its integrity and independence. It is for this reason that lawyers have been called “opposition jurists.”
A nation’s judicial system is composed of three indispensable elements: the trial, at which judges preside; the examination carried out by prosecutors; and the defense, undertaken by lawyers. This indicates that the health of a country’s legal system can be assessed from the role of lawyers and the degree of respect they are afforded within that country.
We are all equal before the law and lawyers must act according to the law. The presumption of innocence and in dubio pro reo — [when] in doubt, [rule] in favor of the accused — are principles valued the world over. Furthermore, every defendant has the right to a fair trial and due process, and the government has a duty to provide an investigation and trial process that conforms to legal procedures.
Lawyers who carry out illegal acts should not be able to hide behind their status as a lawyer to escape responsibility. However, the judiciary must scrupulously observe the twin principles of due legal process and the presumption of innocence.
Otherwise, the judicial system could sink to become a tool used by autocratic states to clamp down on lawyers, and if that happens, the image of a country’s legal reform process would become tarnished.
Police in China have arrested a large number of lawyers. In a country that is undergoing a process of legal reform, lawyers perform an important role. The recent string of arrests is therefore a significant indicator as to whether the Xi adminstration’s pledge to “govern according to the law” and to build a “great nation founded on law” would be achievable.
How the Chinese government handles the arrest of so many lawyers is also significant. If the Chinese authorities — prior to issuing a subpoena, making arrests, issuing criminal charges, placing someone into custody or under house arrest — first adhere to the principles of due legal process and presumed innocence, and if they refrain from making indiscriminate arrests, it would still be possible for Xi to realize the aim of “rule according to the law” that he declared at the plenary session in 2012.
Kao Chia-fu is a lawyer. Lee Yung-ran is a lawyer and president of the Chinese Association for Human Rights.
Translated by Edward Jones
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