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Authorities Impose Restrictions on Lawyers Defending Xinjiang Suspects Amid Official Announcement on Arranging Legal Defense


Date: Monday, 28-September-2009
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Congressional-Executive Commission on China
Posted on: 2009-09-14

In the aftermath of the forceful police suppression of a demonstration held by Uyghurs in the far western region of Xinjiang on July 5 and outbreaks of violence starting that day, authorities in Xinjiang and Beijing have taken steps to restrict lawyers' activities defending people accused of committing crimes on July 5. The steps come as authorities continue to detain and formally arrest suspects in connection to events on July 5 and prepare for trials. The Xinjiang Justice Department has said it will arrange lawyers for the suspects, but has left many details unclear. Against a backdrop of systemic barriers to adequate legal defense in China, the developments raise questions about the likelihood suspects will receive fair trials. The developments also raise questions about the effectiveness of the recently revised Lawyers Law.


Following the forceful police suppression of a demonstration by Uyghurs on July 5 and outbreaks of violence starting that day in the Xinjiang Uyghur Autonomous Region (XUAR) capital of Urumqi, authorities in Xinjiang and Beijing have taken steps to restrict lawyers' activities defending people accused of committing crimes on July 5. The steps precede an announcement in late July that the XUAR Justice Department will select and train lawyers to provide criminal defense to suspects alleged to have links to crimes committed on July 5 when they go to trial. Chinese media reports on the nature of the legal defense are inconsistent, however, and a number of details remain unknown. The announcement comes as authorities continue to report on detentions, arrests, and preparations for trials in connection to events on July 5. For more information on the detentions and arrests, see a related CECC analysis. For more information on the curbs imposed on lawyers and the link between the restrictions and recent amendments to the PRC Lawyers Law, see below.

Xinjiang and Beijing Authorities Impose Curbs on Lawyers; Xinjiang Authorities Announce Plans To Organize Legal Defense
Authorities in at least two localities, Xinjiang and Beijing, have taken steps to prevent lawyers from independently accepting legal defense cases connected to alleged crimes committed on July 5. As also discussed in a previous Congressional-Executive Commission on China analysis, on July 8, the Beijing Municipal Judicial Bureau issued a notice on its Web site (copy available on the Chinese Human Rights Defenders Web site) calling on justice bureaus, the Beijing Municipal Lawyers Association, and law firms in Beijing to "exercise caution" in representing cases related to events in the XUAR. Characterizing events on July 5 as a "typical, premeditated, organized beating, smashing, looting, and burning incident organized overseas and executed at home," the notice calls on lawyers to stand on the side of protecting "national integrity and ethnic unity" and stresses as motivation for the notice factors including "establishing a good image for Beijing lawyers." The notice specifies that before accepting cases, partners in law offices should look into the issue, "report the matter," and "take initiative to accept supervision and direction from judicial organs and the lawyers association." While the language in the notice does not explicitly bar lawyers from accepting cases related to July 5, according to sources cited in a July 10 Amnesty International press release, authorities warned some law firms employing human rights lawyers that those lawyers were not to work on cases related to events in the XUAR.

In addition, the Xinjiang Lawyers Association reportedly ordered lawyers not to take cases on their own initiative and instead let authorities "arrange" all defense efforts, according to a July 14 Radio Free Asia report and July 15 report from the China Human Rights Lawyers Concern Group. The news precedes an announcement, reported in a July 24 English-language report from the Global Times, that the XUAR Justice Department will arrange criminal defense efforts for suspects who go to trial in connection to events on July 5. The report quotes Mao Li, general secretary of the Xinjiang Lawyers Association, as saying that "[t]he Department of Justice in Xinjiang will choose dozens of Uygur lawyers from local law offices to act as free criminal-defense attorneys." The lawyers chosen will receive three to five days of training in criminal law, according to Mao, suggesting the XUAR Justice Department may be including lawyers without extensive experience in criminal defense and it is unclear whether authorities are using the opportunity to appoint and train lawyers to enforce political agendas during the criminal process.

It is not clear whether authorities have informed suspects of the stated availability of defense counsel, especially in light of Chinese-language reports that differ from the Global Times account of the defense efforts. According to August 5 CCTV and Xinhua reports, XUAR Government Information Office spokesperson Hou Hanmin said that criminal suspects and defendants "can receive legal assistance and defense in accordance with the law," but that to date, no criminal suspects or defendants or their families had made any requests for legal assistance or defense. In addition, it is unclear how far in advance of the trial the state-appointed lawyers will be made available to meet with suspects and whether suspects could retain their own lawyer or other legal defender if state-appointed lawyers are not provided until the trial stage. The Global Times article paraphrased authorities as saying that the legal defense "will be given to all those suspected of participating in the Xinjiang riots when they face trial" (emphasis added). Elsewhere in the article, Mao is paraphrased as noting that formal arrests will begin soon and that "judicial departments promised to ensure that each suspect is represented by a lawyer," which may indicate representation earlier in the process. In response to questions including whether suspects could hire lawyers on their own, Hou said in the CCTV article that "China's judicial organs will, in strict accordance with laws and regulations, fully ensure [criminal suspects and defendants'] various procedural rights," according to the CCTV report.

Under Article 96 of the PRC Criminal Procedure Law (CPL) (English text, Chinese text), suspects may hire a lawyer after their first police interrogation or from the day when compulsory measures [such as a summons or detention] are first taken against them. Suspects must receive approval to appoint a lawyer where cases involve state secrets. Lawyers may meet with suspects, though advance approval is necessary for cases involving state secrets, and all meetings may be monitored by investigating organs. According to Article 33, criminal suspects have the right to entrust a defender (youquan weituo bianhuren) from the day a case is transferred to the procuratorate for review for prosecution, and the procuratorate must notify them of this right within three days from receiving the case record for examination. In addition, under Article 33 of the recently revised PRC Lawyers Law (see discussion below on the relationship between the CPL and Lawyers Law), a lawyer entrusted to a case, based on her or his lawyer's practice certificate, law office certificate, and power of attorney or official legal aid letter, has a right (youquan) to meet with a criminal suspect as of the first police interrogation or from the day when compulsory measures are first taken. Under this article, the lawyer meeting with a suspect is not to be monitored (bubei jianting). Chinese law also guarantees pro bono legal defense, but only if the defendant is a minor, faces a possible death sentence, or is blind, deaf, or mute. In other cases in which defendants cannot afford legal representation, courts may appoint defense counsel or the defendant may apply for legal aid. (See Articles 33-34 of the CPL and Articles 11-12 of the Regulations on Legal Aid.)

Amid conflicting reports from Chinese media, questions also remain about the languages to be used in trial and the availability of qualified lawyers and personnel who could speak or interpret into the languages of the defendant. (Han Chinese are among those formally arrested, according to an August 4 Xinhua report, but the Global Times report cited above suggests most suspects are Uyghur.) Under Chinese law, citizens are guaranteed the right to use their own language in court proceedings. (See, e.g., Article 9 of the CPL and Article 47 of the Regional Ethnic Autonomy Law.) According to a February 7, 2006, report from Tianshan Net, however, personnel shortcomings in XUAR courts have meant that "there is no way to guarantee the use of ethnic minority languages to carry out litigation." (See also a November 22, 2007, report from Legal Daily, reprinted in Xinhua Xinjiang.) According to August 14 and October 18, 2007, reports from Xinhua, out of 4,552 judges in the XUAR--where non-Han ethnic groups comprise approximately 60 percent of the total general population according to official Chinese statistics--1,948 (43 percent) of judges were ethnic minorities, and as of September of that year, 380 lawyers, or 17 percent of the total number in the region were ethnic minorities. The reports did not identify the lawyers' language capabilities. An August 23 report from China Daily (via People's Daily) said, "More than 170 Uygur and 20 Han lawyers have been assigned to the suspects; the trials will be carried out in their native languages," but XUAR government authorities later refuted the report, which also said trials would begin that week and listed the number arrested as higher than previously reported. See August 25 reports from the Global Times and New York Times.

Restrictions Contravene Domestic and International Protections for Lawyers and Criminal Suspects
The orders issued by the Beijing Municipal Judicial Bureau and the Xinjiang Lawyers Association, whether explicit or indirect, contravene both domestic law and international protections for lawyers and criminal suspects. Article 14 of the International Covenant on Civil and Political Rights, which China has signed and pledged to ratify, provides for fair trials including through legal assistance of one's choice. General Comment Number 13 to this article provides, "Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter." The UN Basic Principles on the Role of Lawyers promotes "effective access to legal services provided by an independent legal profession." (See also Articles 1 and 16.) Article 28(3) of the PRC Lawyers Law specifies that lawyers may represent suspects in criminal cases, and Article 33, as discussed above, gives lawyers entrusted to the case the right to meet with suspects and defendants as of the first instance of interrogation or from the day compulsory measures are taken. (In addition, see above for discussion of other legal provisions on hiring lawyers and retaining legal defense.)

Revised PRC Lawyers Law Continues To Face Barriers to Effective Implementation
The July 5 demonstration and subsequent outbreaks of violence in Urumqi came approximately one year after the Chinese government undertook legal reforms designed to reduce barriers to the work of defense attorneys. In June 2008, revisions to the Lawyers Law took effect, and in August 2008, the Legislative Affairs Commission of the National People's Congress Standing Committee said that where provisions of the Lawyers Law differ from ("alter," xiugai) CPL provisions, the provisions in the Lawyers Law are to be followed. (See a copy of the Legislative Affairs Commission statement on the All China Lawyers Association Web site.) As discussed in the CECC 2008 Annual Report, the Lawyers Law was revised largely to address the "three difficulties" (san nan) faced by defense attorneys: gaining access to detained clients, reviewing the prosecution's case files, and collecting evidence. An April 2008 Human Rights Watch report, also citing broader problems in China's legal system, including a lack of judicial independence, noted that courts and police often created obstacles to defense attorneys by claiming that a particular case was "exceptional" or "especially complicated." In addition, the report also found, "Only a fraction of criminal suspects are able to meet their counsel before they are charged. In some cases, lawyers have been entirely unable to secure even a single meeting before the trial takes place." Despite the reforms formally implemented in the past year, the effectiveness of enforcement remains unclear, as does the impact of the NPC Standing Committee statement on conflicts between laws. In addition, many criminal suspects continue to lack defense attorneys, and attorneys working on sensitive issues in particular continue to face harassment. (For more information, see, e.g., a June 18 report from China Youth Daily and July 17 New York Times report.) The continuing problems suggest that in addition to shortcomings criminal suspects in the XUAR may face through government-organized legal defense, broader systemic problems within China's legal system also hinder the likelihood of a fair criminal trial.

Restrictions in Xinjiang Follow Efforts To Block Legal Defense in Tibetan Trials
The actions taken by XUAR and Beijing authorities continue a wider trend in hindering criminal defense efforts especially in cases deemed to involve sensitive issues in ethnic minority areas. After the March 2008 Tibetan protests and riots, the government denied criminal suspects the right to independent counsel, as discussed in the CECC 2008 Annual Report and a March 9, 2009, Human Rights Watch report. A July 20, 2009, Radio Free Asia article quotes defense attorney Li Fangping, who traveled to Gansu province after being hired by the families of two Tibetan monks to represent them in a criminal case, as saying, "The authorities not only refused my request to meet those two men, they also refused my involvement in the case by saying they already had lawyers. They effectively denied the families' rights to independently hire attorneys." The UN Committee on the Elimination of Racial Discrimination, which examined the Chinese government's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination in August 2009, "[noted] with concern reports on the harassment of defense lawyers taking up cases of human rights violations, especially those introduced by members of ethnic minorities." (August 28 concluding observations available via download from Web site of the Office of the UN High Commissioner for Human Rights.)

For more information on events in the XUAR starting July 5, see previous Commission analysis (1, 2). For more information on conditions in the XUAR, see Section IV--Xinjiang in the CECC 2008 Annual Report. For more information on lawyers in China, see Section II--Rights of Criminal Suspects and Defendants, as well as Section III--Access to Justice in the CECC 2008 Annual Report.

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