追寻律师的传统 – In search of the lawyers’ tradition – English

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The figure of the lawyer appeared a hundred years ago in the foreign concessions of Shanghai. In 1904, when the shocking “Su Bao case” occurred – when the sinologist and intellectual Zhang Taiyan and the  young Zourong were successively imprisoned – both the Qing court acting as plaintiff and the defendants hired foreign lawyers. During the discussions on whether the accused were guilty or not, verbal battles succeeded each other in court, and after each public hearing, “Declaration” and other newspapers published a follow-up report. As a result, in the end, the mighty imperial court was defeated. Although it is very difficult for us today to know how much can be attributed to literary inquisition, and what role the lawyers played in the final judgement, this episode will still remain forever engraved in my memory.

However, this only occurred in the foreign concession of Shanghai. In places ruled according to the traditional “Peace and Harmony” laws of the Qing court, the lawyer was still a completely unfamiliar social figure, all we had in our national tradition were informal hedge lawyers who lacked proper legal status and authority. Three years after the “Su Bao case”, a Jianhu woman, Xia Qiujin, was executed in Shaoxing, Zhejiang. There was no public trial, no defense lawyer, and no final judgement; in other words, none of the modern legal proceedings. There were only these final words left from Qiujin: “the winds and rains of autumn will worry those who did wong” (NDT: pun on the name “Qiu”, literally, autumn), and these have echoed for a hundred years.

On New Year’s Day 1912, when the first Republic in Asia – the Republic of China – was proclaimed, lawyers from across Zhejiang and Jiangsu founded the Bar Association. Fourteen lawyers from Shanghai set up a “Society of the Defenders of the Republic of China (also known as the “Republic of China’s lawyers association”, which by the time it was dissolved at the end of the year had over 170 members). That same year, on the 12th of September, the Ministry of Justice issued the “Interim Articles of Association for Lawyers”, which formally established the status of lawyers. Although, prior to this, the draft criminal code issued in 1910 already provided a legal basis for the existence of lawyers, and a small number of local lawyers had begun to practice in Shanghai and other treaty ports. By august 1913, there were 1520 licensed lawyers nationwide; a majority had studied law in Japan, a minority had graduated from Chinese schools of law and politics.

In 1913, after the young Shao Piaoping offended powerful local figures with his relentless critiques published from the Hangzhou office of the “Han Journal” and was taken to court, the first president of the Zhejiang Bar Association, the lawyer Ruan Xingcun, appeared in court to defend him, and finally won the case. In the “Song Jiaoren case”, the lawyer Yang Jingbin became the target of public criticism when defending the accused Guixin. Under the pressure of political and political opinion seemingly united against him, he had to ensure the personal safety of the suspect. He required that the suspect be tried in a local court in Shanghai, in order to ensure the independence of the judgement. As a result, the Ministry of Justice revoked his licence. The bar associations in Shanghai and the surrounding areas one after another all made statements in his favour. This was an effort from lawyers to defend legal procedures and the professional rights of lawyers. After this, in many major historical events, we can hear the voice of the lawyers and distinguish their proudly independent attitude. Some figures who had political ups and downs for many years, after leaving the field of power, chose a law career after they settling down. Congressmen Liu Chongyou and Shen Junru did so, as did the Minister of Education, Assistant Attorney General scholar and political commentator Zhang Shi Zhao,as well as the jurist Zhang Yaoweng, who was involved in drafting the “provisional constitution” and served three terms as attorney general for fifteen years before the Republic of China. Dong Kang, who was formerly President of the Supreme Court, Minister of Justice and heavily involved in the Republican era law codification and compilation efforts, did it as well… All were prestigious lawyers in their time.

In July 1927, the Guomingdang government in Nanjing issued the new “Articles of Association for Lawyers” and the “Articles of Association for Registered Lawyers”, the most significant change being that women could become lawyers. That’s how such a young female lawyer as Shi Liang appeared in the Chinese courts. In 1927, she graduated from a private Shanghai law university, able to recite the “Six Books of Law”; a few years later, she took the bar exam, and in 1931, she began to practice in Shanghai. By 1937, there were 1328 lawyers in the Shanghai Law Association alone. From 1918 to 1933, of the 645 law graduates from Dongwu University, 228 went to practice law in Shanghai, and of those 9 were women.

History won’t forget what happened in April 1933, at the public hearing of Chen Duxiu and others in the Guomingdang-dominated Jiangsu High Court for “Crimes against the Republic”. Although he did not share Chen’s political views, Chen Duxiu’s old friend Zhang Shizhao who had worked with him on the magazine, still felt obliged to defend him. In court, he eloquently combined jurisdprudence, logics and facts to prove that “the government is not the State” and that “opposing the Guomindang government is not opposing the State”. His epic speech for the defense was reported and reproduced in Declaration, Dagong Bao and other newspapers of the time, causing a public sensation. The President of the Guomingdang paper Central Daily News, Cheng Tsangpo, published an editorial entitled “Contemporary China’s State and Government – a reply to Chen Duxiu and Zhang Shizhao”, refuting him.  Zhang Shizhao fought back by publishing “The Guomingdang and the State” in Declaration. This debate within and outside the court highlights the style of lawyers in those days but the most moving thing for future generations was the argument made by Zhang Shizhao in favour of Chen Duxiu. In the year of its publication, the statement was already being treated as an essential text of reference in certain law schools. From this we can have a profound understanding of the fact that a lawyer does not act in isolation: if there is no press, no publishing industry, no education sector, etc – and the atmosphere these create – if there is no community working together at different levels, no matter how much courage, professional integrity and high moral standards a lawyer has, they will not achieve anything on their own. In other words, without a variety of actors in the social arena behind them, a lawyer can’t perform such a powerful individual drama. The defense of the lawyer Zhang Shizhao failed to change the outcome of the trial led by the Guomingdang against Chen Duxiu, but he maintained the dignity of the law and of lawyers.

In the “Seven Gentlemen case” which occured on the eve of the war of resistance, Shen Runju and six other gentlemen were imprisoned for building an organisation called “National Salvation”, calling for resistance against the Japanese.  Among these seven were four lawyers (Shen Ruju, Sha Qianli, Shi Shen, Wang Zaoshi), and a large cast of other lawyers worked on their defense – 21 lawyers, including Zhang Yaozeng, Li Yaofu, Chen Zhigao, Jiang Yong, Wang Youling, Jiang Yiping, Liu Chongyou, Zhang Zhirang and others, the cream of the law profession in China at the time. These lawyers had held many previous titles between them: assistant attorney general, members of Congress, presiding judge of the Daliyuan (the Supreme Court), Dean of the School of law at university, professor, president of the bar association in Shanghai and Suzhou. Many lawyers felt an obligation to defend them out of a sense of justice although they did not entirely agree with the political views of “the Seven Gentlemen”. Some even had clearly distinct opinions. For instance the lawyer Zhang Yaozeng did not agree with the organisation “People’s Front”, but still represented them. Wang Baoji agreed to defend Sha Qianli due to their common geographic origins: ”I will do as much as possible to help a friend, but I will not take a political stance.” However, the lawyers clearly pointed out that the charges against the seven gentlemen of “endangering the State” were false, that the charges confused right and wrong, destroyed the dignity of the law, and represented a judgement of historical absurdity. For a long period of time, the court and the media echoed with the noble words of the parties accused, of the lawyers and of the journalists. 

In 1948, after the Guomindang authorities ordered the Nanjing “Xin Min Bao” to cease publication, husband and wife Chen Mingde and Deng Jixing employed six lawyers, Qing Zhang, Shi Zhao, Jiang Yong, Jiang Yiping, Zhou Yizhi, etc. to draft a thousand word “letter of appeal”, making an effective plea based on law, fact, reason etc. requesting the lifting of the sentence. This ‘letter of appeal’, impeccable in tone, reasoning and legal argument, did as much good as water down the drain, and ultimately had little effect. Nevertheless, they fought by using the legal system, and their efforts were not meaningless. In the transition period from a society without rule of law to a society based on the rule of law, the use of legal weapons by citizens, and the gradual building of a framework of rights within the legal system  may not have an immediate effect. However over the course of time, the accumulation of such instances leads society to undergo profound change. The key factor is sustained, long term, insistent effort, and the role of the lawyers is therefore crucially important. This, and resorting to a one-off effort, a very quick, very intense choice that points to a different direction. But in the long run, the first option of progress by gradual accumulation is undoubtedly more reliable and solid. 

History will not forget the role of the bar association either. This professional body of lawyers was very active on the issues of social justice. In 1933, in the town of Zhenjiang, Jiangsu province, manager of the “Voice of Jiang Daily” newspaper, Liu Yusheng was shot to death for his investigative journalism. In the protests that followed across the country, the voices of not only media groups, the Chinese League of Civil Rights and other social groups were heard, but the protesters also included the National Bar Association. They published an open telegram, requesting the investigation and pursuit of those responsible. The Guomingdang authorities were forced to respond, and issued orders for the “protection of legitimate public opinion” and the “effective protection of journalists”. In 1936, Shen Junru, Sha Wanli, Shi Liang, Wang Zaoshi, four members of the Shanghai Bar Association, were arrested; among them, Shen and Sha were also board members. During their imprisonment “from inside the association, there was never any proposal or action taken to replace them.” On the contrary, in early August 1937, after they were released, the Executive Committee passed a resolution that a banquet should be organised to show sympathy for these four members. 

Of course, the lawyers did not only safeguard the citizens’ freedom of speech, personal freedom and right to live, but the lawyers also undertook the duty to protect citizens’ property rights and other legitimate rights and interests. The young Shi Liang, in the early years after she opened her law firm in Shanghai, gained fame by fighting civil disputes. On her office desk, there was an eye-catching silver shield with the words “protect human rights” engraved on it, a constant encouragement to her to be an honest lawyer. Lawyers not only have to face powers that do not follow legal procedures and jurisprudence, but they must also face all sorts of social evils, including the mighty power of the underworld, and litigators who support evil doers (the scum of the legal profession). Zhang Yaozeng, in his Shanghai practice, often had to face similar cases. People advised him to give up, but he replied, it is the duty of lawyers to protect people’s rights, and if there is no one in the legal system to speak for up the weak, does that not disgrace lawyers? Although to know and resist such evil is especially dangerous, it is my duty to do so, and I would not dare to desist.” The sound of these words is still moving to this day. 

About julien.leyre

French-Australian writer, educator, sinophile. Any question? Contact [email protected]