The following article was originally published in the December 2008 issue of the Montana Lawyer magazine:
In January of this year I had the good fortune to travel to Geneva, Switzerland on behalf of the Mansfield Center at The University of Montana to meet with Karen Tse, the CEO and founder of International Bridges to Justice (IBJ). Karen is a graduate of UCLA Law School and Harvard Divinity School, a former public defender, and the 2008 recipient of the ABA’s International Human Rights Award. We reached an agreement with IBJ to assist in developing criminal defense clinics in law schools in China. Clinical legal education is still new to China, and criminal defense clinics are even newer. Our current project has 8 participating Chinese law schools, and we will expand the project to 16 schools by the middle of next year. The project is being conducted in conjunction with the Chinese Committee on Clinical Legal Education, the umbrella organization for clinical education in China. Over the next few months, I will describe some of the problems and challenges to legal reform in China, and to the best of my ability give you my perspective on what it’s like for a practitioner from Montana to be participating in that reform.
There are many NGOs that have helped to bring attention to human rights violations around the world. Some of the attention has been productive in helping institute change, some of the attention has hardened government positions. IBJ has a different approach to ending human rights abuses. Karen’s idea to change the world is simple; “Let’s stop complaining and get to work.” IBJ’s mission is:
“In recognition of the fundamental principles of the Universal Declaration of Human Rights, International Bridges to Justice (IBJ) is dedicated to protecting the basic legal rights of ordinary citizens in developing countries. Specifically, IBJ works to guarantee all citizens the right to competent legal representation, the right to be protected from cruel and unusual punishment, and the right to a fair trial.”
To carry out this mission, IBJ works with the criminal justice systems of many countries to assist them with implementing the country’s own laws. Currently IBJ has projects in China, India, Vietnam, Burundi, Cambodia, Rwanda, and Zimbabwe. They are careful not to engage in political activities in its host countries, instead, the focus is to offer training and assistance to those attorneys representing the indigent in criminal cases. IBJ’s vision is that effective defense counsel for the poor is a powerful tool to help end torture and to enhance the rule of law. IBJ’s activities are intensely practical, with training and technical assistance offered on basic and universal criminal defense advocacy skills, tailored to the legal system of each country in which it operates. Rather than criticizing governments, IBJ focuses on helping attorneys that are doing the day to day criminal defense work for the poor around the world.
IBJ first came to China in 2001, and since then has worked with a number of Chinese government agencies, universities and lawyers organizations. IBJ’s idea is to foster reform at the grassroots level by training lawyers and law students in advocacy skills, and to foster reform at the national level by working with policy makers.
China faces many obstacles to implementing criminal justice reform. First among those obstacles is the size of the country. China is home to more than 1.3 billion people, but has fewer than 150,000 lawyers. Their present legal system is 30 years old, and is continuing to evolve. China does provide the right to counsel, but only for certain types of cases: death penalty offenses, juvenile crime, and cases in which the accused is blind, deaf, or mute. All other cases only receive counsel if the court decides to make a discretionary appointment, and if there is an attorney available.
Even if an attorney is appointed, it is an uphill battle to obtain justice for the client. There are three distinct phases of a criminal prosecution in China: the investigation stage (in which the police have control of the case), the prosecution stage (in which the prosecutor has control of the case), and the trial stage. Attorneys are most frequently appointed only at the trial stage, often just a few days before the trial begins. There are about 5000 full time legal aid attorneys, not nearly enough to represent all those charged with crimes. If the case is sent to a private attorney, the amount paid to the attorney may not cover the actual costs the attorney will incur. If the attorney becomes too aggressive in investigating the case, there is a distinct possibility the attorney may be prosecuted for interfering with the case. When the case goes to trial, witnesses will rarely appear, there are no rules of evidence that apply and only a very general statutory authority defining what evidence is allowable. Although the number of attorneys in China is increasing, the percentage of indigent defendants that receive legal representation appears to be decreasing. The most recent statistics available (reliable statistics about Chinese criminal justice information are difficult to obtain) indicate that only slightly more than 9% of those accused of a crime receive counsel.
On the other hand, China has come a very long way with its criminal justice system in just a very short period of time. In only 12 years, China has established over 3200 legal aid centers to help the poor with their legal issues. These centers offer free legal assistance in a variety of cases including civil law, administrative law, and criminal cases. China recently amended its Lawyers Law, giving attorneys expanded access to clients in custody. Many academics, lawyers, and jurists, are committed to continuing reform of their criminal justice system. As reform takes place in China, however, it will be at China’s pace and according to Chinese ideas of justice.
IBJ is one of many groups working to advance the rule of law throughout the world, and is interested in building a network of attorneys committed to the rule of law. The organization offers many opportunities for lawyers to participate as volunteers in their reform work, and can be contacted through their website at www.ibj.org.