Rights-Protection Commentary: Good Laws Should Protect the Upright! The Revision of the Lawyers Law Must Not Leave Only Restraints

Special Commentator: Liang Xin

Modern rule of law has an unshakable underlying logic: the right to defence is the most important defensive barrier for ordinary citizens confronting public-power prosecution, and an indispensable pillar of the human rights protection system. As the ancients said: when rewards are excessive, they benefit petty people; when punishments are abused, they harm gentlemen. A good lawyers law must not only purge the industry of its scum, but also protect those who perform their duties with integrity. The current Law of the People’s Republic of China on Lawyers (Amendment Draft) is soliciting public opinion nationwide. Its provisions contain both advantages and disadvantages, reflecting a profound problem in the course of China’s judicial reform: legislative constraints continue to tighten, while rights protections advance only slowly, presenting a clear one-sided tendency.

Compared with the existing law, the progress made in this round of revisions is clear, but much of it remains superficial. The draft institutionalises full coverage of lawyer defence in criminal cases, expressly requires public security, procuratorial and judicial organs to establish systems safeguarding lawyers’ rights to practise, expands the scope of legal aid, enables parties who are economically disadvantaged or in vulnerable situations to access legal services, and strengthens the foundation for ordinary people to seek equal judicial remedies. At the same time, in response to such problems as fraudulent litigation, unauthorised representation and malicious sensationalisation using cases, the draft increases the severity of punishments. There are indeed practitioners in the industry who are blinded by personal gain and trample on the legal bottom line. Holding such people accountable according to law, and putting the industry on the right track, is an inevitable trend; as the saying goes, when laws are enforced, the country is well governed, while when private interests prevail, the country falls into disorder. There is nothing objectionable about regulating the industry’s order.

However, an examination of the real picture of judicial practice makes it not difficult to discover that the draft evades the core problems that have long existed in the field of criminal defence, and its institutional shortcomings are worrying. For a long time, the judicial arena has witnessed an extremely ironic imbalance: public-power organs unavoidably make evidence-collection errors, procedural omissions and mistakes in assessing facts when handling cases, yet most of the time they settle the matter through internal rectification, with ample room for error; but when lawyers adhere to legal principles, confront evidentiary deficiencies and put forward defences of innocence or lesser culpability, they often face risks merely because their views do not accord with those of the case-handling organs, and can easily be accused of obstructing the administration of justice.

Over the past several decades, many criminal defence lawyers who cherished ideals of the rule of law, refused to ingratiate themselves and dared to scrutinise the details of cases never crossed the legal red line. Yet merely by adhering to an independent defence position, they ultimately found themselves imprisoned. This is not an isolated instance of deviation in law enforcement, but an institutional risk produced by vague legal boundaries. “Rather than kill the innocent, it is better to let the guilty go,” has been the essence of judicial prudence since ancient times. Yet today, this bottom line lacks firm institutional support in the field of lawyers’ practice. Regrettably, this revision continues to follow the old framework, placing greater emphasis on defining prohibitive provisions while failing to establish a bottom line of immunity for lawyers performing their duties in accordance with the law.

The draft fails to refine the rules on immunity for statements made in court, establish clear criteria distinguishing lawful independent defence from interference with judicial order, or provide necessary tolerance for professional challenges and rational confrontation. As a result, considerable discretionary power remains in grassroots law enforcement, and the adversarial nature inherent in professional defence can easily be equated simply with opposition to public power. An awkward situation ultimately takes shape: lawyers with a history of deliberately violating the law for profit may not necessarily be punished precisely, while legal professionals who remain true to their original aspirations and dare to speak out may at any time suffer collateral damage. If this continues for a long time, everyone will fear trouble and keep silent; the criminal-defence stage will fall silent, and defendants’ right to defence will become a dead letter.

As Bao Zheng wrote in a poem: “A pure heart is the foundation of governance; the straight path is one’s life’s strategy. A fine trunk will ultimately become a pillar; refined steel will not be made into a hook.” Lawyers with genuine ideals are willing to uphold the straight path and safeguard justice, hoping that the law will become a means of advancing justice rather than shackles that tie their hands and feet. The value of lawyers lies in serving as a buffer zone between citizens and public power; the significance of the defence system lies in preventing arbitrary power from producing wrongful and erroneous cases. Governing the legal profession absolutely does not mean tightening the reins indiscriminately, but rather combining leniency with strictness and drawing a clear distinction between right and wrong

We absolutely do not advocate allowing lawyers’ illegal conduct to go unchecked. Any acts of fraudulent representation, fabricating evidence or disrupting the order of litigation should be punished according to law. But legislators should see even more clearly: if the system is enthusiastic only about “tightening restraints” while neglecting to “build solid protections,” those ultimately harmed will be not merely the lawyers as a group, but the judicial human rights of the entire public. Good laws should distinguish good from evil, leave no room for treacherous wrongdoers, and set no barriers to protecting the upright.

The window for soliciting opinions on the draft remains open, which is precisely an opportunity to remedy its shortcomings. Only by clarifying the boundaries of immunity for performing duties, defining the limits between power and rights, and eliminating the chilling effect caused by selective enforcement can lawyers be enabled to argue in accordance with the law and speak out for justice without fear. If one knows only how to regulate lawyers but has no intention of protecting rights, and cannot eliminate the widespread professional fear among criminal defence practitioners, then the promises of rights on paper will ultimately vanish like smoke before one’s eyes, unable to take root in reality. Only when the rule is impartial can the world be free of wrongful convictions; only when rights and responsibilities are balanced can the rule of law flourish for a long time.