By Leila Choukroune From: Libération
Translated by Leslie Thatcher of Truthout 12/5/06

August 20, the People’s Court of Yinan in the Shandong province condemned Chinese defense advocate Chen Guangcheng to four years and three months of prison for “intentional destruction of property” and the organization of “gatherings designed to disturb traffic.” On appeal, a parody of justice has just flouted the most elementary rights of defense once again.

Born blind to a peasant family, 34-year-old self-taught lawyer Chen Guangcheng is one of those “bare-foot lawyers” who no longer hesitate to use a more protective Chinese law to defend their fellow citizens from arbitrary action by the state. Outraged by the massive forced sterilization and abortion campaigns in his region, Chen has made himself known through his fervent support for peasant victims of abuses of the One-Child policy by preparing a collective case with the objective of obtaining a legal conviction against illegal acts committed by local authorities. The case seemed a formidable test of the principle of a “government of laws,” established by Beijing as so many guarantees of the operation of a “Socialist government of law” that respects individuals’ freedoms.

In spite of the support of eminent Chinese jurists, Chen Guangcheng was placed under police surveillance, then arrested. Access to the court was denied to his lawyers, who were subjected to physical violence and threats. The villagers Chen had defended were tortured and threatened with death, then released once their testimony had been modified in favor of the local authorities.

Chen Guangcheng’s case is unfortunately not isolated. In 2003, Zheng Enchong was condemned to three years of prison for having defended Shanghai residents who were victims of expropriations. Released last June, he still lives under police control; his license to practice law has been withdrawn and all communication with the outside seems to be prohibited to him. Yang Maodong, a Beijing lawyer from the former Shengzhi firm, was arrested several times and beaten for defending the inhabitants of a village in Guangdong province who tried to bring down the corrupt local leader. Gao Zhisheng, a famous lawyer known for his support to Christians, members of Falun Gong and his own colleagues, took on Yang Maodong’s defense, notably by organizing a hunger strike. His license was annulled in 2005. Detained by the police since August, he has just been officially accused of “inciting subversion,” an extremely serious charge. His lawyer, Mo Shaoping, has not been able to get into contact with him under the pretext that the affair relates to State secrets.

The exercise of the lawyer’s profession does not enjoy adequate guarantees. Prohibited between 1957 and 1977, lawyers have been progressively rehabilitated with the 1978 Constitution and the new penal code that established the right to a defense in 1979. The National Association of Lawyers and its local chapters are charged with the management of Chinese lawyers, yet they are not independent because they still depend upon the Ministry of Justice. In 1997, the “Law on Lawyers” was considered the charter for exercise of a profession undergoing full-scale expansion. Nonetheless, a certain number of dispositions still tend to restrict Chinese defense lawyers’ freedom of action. Article 96 of the Law on Penal Procedure provides, for example, that lawyers accused of divulging state secrets who wish to obtain external help must obtain the agreement of the public security organs beforehand. The very concept of state secret is defined in a manner sufficiently vague to make lawyers particularly vulnerable to that type of accusation.

The denunciation of the absence of uniform application of Chinese norms is no longer adequate. We must throw light on the insidious tendency towards desecration of the law to the benefit of a worrying return of local government arbitrary action. On March 20, the National Association of lawyers published an “Opinion for the attention of defense counsel dealing with collective matters.” According to this text, the authorities must now be informed of all cases involving the interests of more than ten people. State administrative and legal organs then take over from the lawyers with no possibility of interaction with the press. A series of rules along the same lines has been adopted at the local level.

These recent developments run counter to the meritorious efforts in the direction of modernization and of securing a Chinese law ever more open to outside influences. The process of rehabilitation of norms, which takes place through legal and procedural mimicry, nonetheless hides an ambiguous relationship to the law. That’s the whole paradox of Chinese legal and institutional reforms: while ordinary citizens in ever greater numbers seize the normative tools they are offered by the central government, the Party-State, too worried about being overwhelmed, tries to destroy the democratic leavening present in its own creations.

Such systemic instability not only prevents Chinese citizens from enjoying the rights they are theoretically guaranteed, it also weighs on good business performance and the durability of an economic development that still depends heavily on foreign investors, who are also concerned about justice.

The extraordinary courage of these individuals, who confront local governments because they believe in China’s possible development into a true government of laws, deserves to be firmly supported by a vast international mobilization. Beyond the immediate emergency, respect for Chinese law will come through better training for legislative and judicial actors and through a real separation of powers.

Leila Choukroune is an assistant professor in the department of law at HEC, Paris.

Translation: t r u t h o u t French language correspondent Leslie Thatcher.