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Article 37 of the PRC Law on Lawyers: A New Trap Set for Lawyers

   Teng Biao
   Lawyer, Beijing Huayi Law Firm

   Lecturer, China University of Political Science and Law
   Originally published in Chinese by the China Human Rights Lawyers Concern Group (http://www.chrlcg-hk.org/?p=206)
   The revised Law on Lawyers was passed at the 10th Standing Committee of the National People’s Congress on 28 October 2007. Despite some positive changes made in regard to lawyers’ consultation with criminal suspects and defendants, access to and photocopying of case files and documents, there has been no change at all regarding the independence of Lawyers’ Associations. The hope amongst academics and lawyers that new provisions in the Lawyers’ Law could be used to undo the malicious effects of Article 306 of the Criminal Law has also been dashed. Article 37 of the newly revised Law on Lawyers,, in particular, deserves attention. It says, ‘The personal rights of a lawyer in practicing law shall not be infringed upon. The representation or defense opinions presented in court by a lawyer shall not be subject to legal prosecution, however, except speeches compromising the national security, maliciously defaming others or seriously disrupting the court order.’; a trap for lawyers, in particular criminal lawyers.
   Lawyers’ legal immunity for statements made in court means that lawyers enjoy the right not to be held criminally or civilly liable for any oral or written statements concerning the submission or evaluation of evidence, or concerning defense statements or other statements made on behalf of litigants or defendants in court. Immunity of lawyers for statements made in court is common practice in all countries under the rule of law. For instance, an 1881 French law already stated that, ‘Lawyers shall not be subjected to charges of libel, defamation and contempt for verbal statements made or written documents submitted in court.’
   The Code of Conduct of the Bar of England and Wales says, ‘Oral statements made by lawyers appearing in court should be true and accurate. In general circumstances, lawyers enjoy exemption rights regarding the oral statements made before court.’ ‘Lawyers appearing in court should act with courtesy for the court.’
   Similarly, Section 1 of Article 452 of the Criminal Procedure Law of Luxemburg states that, ‘Oral or written statements made and submitted in court shall be exempted from all criminal charges if the statements in question were related to the litigation or the parties involved in the litigation.’
   In the case of the Hong Kong Special Administrative Region, the Hong Kong’s Solicitors’ Guide to Professional Conduct passed in 1990 clearly states that lawyers appearing in court on behalf of clients are immune from legal responsibility toward third parties.
   Polish laws also protect the immunity of lawyers while carrying out their professional duties meaning that except for defamation of the judge or prosecutor, lawyers are cannot be charged with defamation.
   Similarly, the criminal procedures in Japan also provide for exemption from legal responsibility for lawyers appearing in court. Even in cases where there is insufficient evidence, the defense lawyer is exempted from legal liability.
   In the case of France, there are supplementary laws which allow the court to request the lawyers’ association to which a particular lawyer belongs to take disciplinary action against the lawyer for disrespectful conduct in court. The Netherlands has similar provisions which say, ‘in cases where lawyers express contempt for the court, or make fun of or insult clients or witnesses, in oral statements in court or by any other method, the presiding judge may issue a warning and criticize the lawyer. But the presiding judge is not allowed to discipline or punish lawyers because this power lies [exclusively] with the disciplinary committees of the lawyer’s associations.’
   Immunity of lawyers from liability for oral statements in court is also a right recognized by international conventions and treaties. In 1990, the Eighth United Nations Congress on the Prevention of Crimes and the Treatment of Offenders held in Havana, Cuba adopted the Basic Principles on the Role of Lawyers. Article 16 of the Principles requires that ‘(g)overnments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.’ And Article 20 of the Principles requires that ‘(l)awyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.’
   What is the point of such a system? Its point is related to the form and nature of litigation. Litigation requires that there be equality between the plaintiff and the defendant. The French philosopher Pierre Manent once said, ‘Equity must take precedence over justice. It is equity that creates and constitutes justice.’ The plaintiff and the defendant are equal subjects of the procedure in civil litigation cases. The relation is more complex in criminal cases; here the prosecution represents the state’s demand that criminal conduct be prosecuted, so naturally, the prosecution is in a more powerful position than the defense. In order to realise the principle of equity in this situation, to achieve an “equity of arms” and to ensure that both sides enjoy the same rights, neither side must attempt to exert any undue influence on the judge. The judge, on the other hand, must be impartial. He must give equally serious consideration to the arguments and statements of fact presented by both parties. Witnesses of the prosecution and defense must be able to provide testimony in the same conditions, they must have equal opportunities, and any bias is absolutely impermissible. The immunity of lawyers regarding oral statements made before the court is also an institutional arrangement that must not be disregarded.
   The lawyers’ immunity in respect of submissions made before the court is determined by the nature of the legal profession and its ethical standards. Article 35 of the Criminal Procedure Law of the PRC stipulates, ‘The responsibility of a defender shall be to present, according to the facts and law, materials and opinions proving the innocence of the criminal suspect or defendant, the pettiness of his crime and the need for a mitigated punishment or exemption from criminal responsibility, thus safeguarding the lawful rights and interests of the criminal suspect or the defendant.’ Moreover, the Standards of Ethics and Disciplines of Professional Lawyers issued by the All China Lawyers’ Association state in Article 5 that, ‘lawyers shall abide to honesty, credibility, diligence and responsibility in fulfilling the requirement and responsibility of the profession for the defense of the legal interests of clients.’ In addition to that, Provision 24 requires that ‘lawyers shall fully exercise professional knowledge and skills, complete the entrusted tasks under legal parameters; and with commitment and responsibility, maximise protection of the legal interests of the clients.’
   In order to fulfill the duties set out above, lawyers must do their best to collect evidence favourable to their client and rebut the arguments and evidence presented by the other party in the course of the litigation process. In this process of gathering evidence, challenging the other side’s evidence and making a case for their client lawyers will inevitably come in conflict with the other side, and possibly even with the official ideology of the State. If a lawyer’s performance of his role can be regarded as giving rise to tortuous or criminal liability, this will have tremendously adverse effects on the legal profession


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