Since July, across China authorities have detained or questioned some 225 Chinese "right violation" lawyers and staff who represent dissenters of one sort or another. Some are held in house arrest but others are held at locations unknown to their families—a violation of recently amended Article 73 of the criminal procedure law, which limits such detention to national security or major bribery cases where secrecy is essential to effective investigation.
China's ruling Communist Party last year made rule of law its overriding theme. They mean it. But they don't mean it the way we mean it. They are talking about the regularization of procedures, of ways of doing things. They do not mean that lawyers and judges are free to contravene official policy. They mean effective governance, not an independent bar and judiciary. Such civil society progress is important—environmental laws have been strengthened, courts improved, judicial decisions published on the Internet, etc.
But anyone who challenges the Communist Party's monopoly on political power faces arrest. So do those who would split Tibet or Xinjiang from China. But also vulnerable is anyone who rattles the cage, as the lawyers for dissident groups have found. One lawyer—Sui Muqing, based in Guangzhou—has now been charged with "inciting subversion of state power" as a result of her work on public interest cases. Other lawyers and legal activists have been charged with "picking quarrels and provoking troubles."
We American lawyers welcome the regularization and strengthening of the everyday operation of the Chinese legal system. We have fruitful exchanges and collaborations. Courts are improving. Law is developing. Lawyers and law professors take law seriously. But advocacy that touches "sensitive" issues—a common Chinese euphemism—can run afoul of the authorities. That sort of repression we properly oppose. The American Bar Association President recently stated that the ABA "encourages the Chinese Government to permit lawyers to discharge their professional duty to assure achievement of the fair and just legal system that the Communist Party has promised to all its citizens (and) encourages other foreign institutions that are objecting to the current treatment of lawyers in China to join in supporting those lawyers and cooperating with China."
We think that is putting it rather too mildly. We understand that there is a fear of jeopardizing working relationships. Such a tepid statement seems to show the chilling effect of the recent wave of arrests and detentions of dissident lawyers.
By contrast, the City Bar in a letter to China's President Xi Jinping called for the Chinese government to "immediately release the lawyers, legal activists, support staff, and family members targeted in this attack. Any ongoing detentions should conform to international standards of detention and ensure that detainees are held in official detention facilities, have regular access to legal counsel, and have access to their families. Moreover, we urge the Chinese government to take other steps to ensure that lawyers in China are free to carry out their professional obligation without intimidation, hindrance, harassment, or improper interference, in conformity with international standards and Chinese domestic law."
In our opinion the forthright statement of the New York City Bar Association strikes the right note.