Communist party declares war on China's lawyers

In the early hours of 9 July 2015, Wang Yu’s (??) electricity was suddenly cut off in her flat. Writing on WeChat, the lawyer said she heard the sound of people trying to break in. Shortly afterwards she was gone. More than six months later Wang Yu is still being held incommunicado by the Chinese authorities. Her friends and family have no idea where she is. On 7 August, her lawyers were advised that she is alleged to have 'incited state subversion', although no charges have yet been laid. Despite numerous attempts, her lawyers have not been able to meet with her, nor have they been briefed about the case.

Wang Yu’s family has also been targeted. On 8 July, her 16-year old son, Bao Zhuoxuan (???) and his father, Bao Longjun (???), were arrested at the Beijing airport. Bao Zhuoxuan was en route to Australia for his high school studies. At that time, Bao’s passport was taken away and his father arrested. Shortly afterwards, on 6 October, Bao Zhuoxuan was detained by Chinese security officials in Mong La, Myanmar as he attempted to flee China. He had hoped to travel from Myanmar to Thailand, and then onto the US. After being held incommunicado for six days, Bao Zhuoxuan was placed under house arrest at his grandmother’s home in Inner Mongolia. He is currently living with his aunt with national security agents next door and accompanied to school by police.

Wang Yu and her family are among the many affected by the crackdown on the legal profession that began mid last year. According to the China Human Rights Lawyers Concern Group, at least 316 lawyers, law firm staff, human right activists and family members have since been questioned, summoned, forbidden to leave the country, held under house arrest, residential surveillance, criminally detained, arrested or have disappeared.

The scale of this '709 crackdown' is larger than any recent actions targeting the legal profession. It affirms the Chinese government’s ongoing willingness to silence lawyers, especially ‘weiquan’ (??) or human rights lawyers. Earlier this week, on 12 January, Chinese authorities formally charged several of the lawyers held in secret since the crackdown. One of the charges includes 'state subversion' for Zhou Shifeng (???), the founder of Fengrui law firm, which carries a maximum sentence of life in jail. Four other lawyers have been charged with 'incitement to state subversion', which carries a maximum sentence of 15 years. Lawyers are being accused of trying to overthrow the Chinese State. [fold]

The crackdown undermines commitments at the fourth plenum of the 18th National Party Congress on 23 October 2014 to adhere to the rule of law and respect the independent practice of justice. Additionally, it is inconsistent with comments on 16 September 2015 by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security and the Ministry of Justice which stressed that People’s Procuratorate, Public Security Organs, State Security Organs and Justice Organs should respect lawyers and improve a lawyer’s right to practice.

Given Australia, and its like-minded partners, attempts to persuade China to adhere to a rule based order, the crackdown on the legal profession is of particular concern. An independent legal profession is integral to the development of an economic and political system which can be trusted. True independence requires freedom from external, political, media or other pressures for lawyers and the clients they represent.

International human rights law and United Nations treaty bodies have been unequivocal on the independence of the legal profession. Article 16 of the United Nations Basic Principles on the Role of Lawyers states that governments:

Shall ensure that lawyers…shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.

Meanwhile, on 9 December 2015, the UN Committee Against Torture (CAT) released its Concluding Observations on China’s fifth report to the Convention Against Torture. CAT called on China to ‘…adopt the necessary measures without delay to ensure the development of a fully independent and self-regulating legal profession…’

While the lawyers targeted have predominantly been human rights lawyers, rather than corporate lawyers, their independence should be protected. The Law Council of Australia along with other legal professional bodies, such as the International Bar Association, have called on China to abide by international human rights law and CAT’s concluding observations.

The Australian Government and the Department of Foreign Affairs and Trade in particular have a long history of advocating on human rights issues in China. Human rights advocacy in relation to China, as with any other country, involves a multifaceted approach, incorporating bilateral and multilateral representations at a private and public level. With China there is the added element of the Australia-China Human Rights Dialogue that began in 1997. Recognising the interests of the government, non-government organisations and the Australian public, a junior officer is stationed in Australia’s embassy in Beijing with responsibility for monitoring, reporting and advocating on human rights issues. DFAT has noted the gravity of the crackdown and expressed concerns in a media release.

However, given the unprecedented scale of the crackdown and its ongoing impact, the treatment of lawyers in China should be included on Prime Minister Turnbull’s list of issues to be raised in bilateral meetings with Premier Li Keqiang (???) and President Xi Jinping (???). These are expected to take place in the first few months of 2016. Advocacy by foreign governments can make a real and substantial difference, as shown in the recent case of noted lawyer Pu Zhiqiang (???). His three year suspended sentence has ended his legal career, silencing a lawyer committed to freedom of expression. However, the situation could have been much worse. Efforts by diplomats, including Australian, to view Pu Zhiqiang’s trial, and advocacy by non-government organisations contributed to the lighter than expected sentence.

In the South China Sea, Australia, along with its like-minded partners, has called upon all claimants involved in the ongoing territorial dispute to abide by a rules-based international order. The treatment of the legal profession is another example where Australia’s national interests align with calls for China’s adherence to international law. Providing a stable environment in which the legal profession can operate assists in the resolution of disputes and increases investor confidence. Given China is Australia’s largest trading partner, we have a vested interest in ensuring that the Chinese legal system is robust, fair and impartial. The treatment of the legal profession an important component of China’s ongoing economic and legal transition.

Simon Henderson