A National People's Congress representative confirmed last week that a special perjury charge for lawyers in the Criminal Law will likely be removed.

Although the legislature member did not reveal a specific timetable for the law revision, the news is enough to cheer up the nation's more than 130,000 licensed lawyers, as well as everyone who believes in the rule of law.

The charge in question is stipulated in Article 306 of the Criminal Law, which states attorneys in criminal cases can be jailed for up to seven years if they destroy or fake evidence, assist their principals in doing so, or cajole or intimidate witnesses into perjuring.

The article is not problematic in the literal sense of the word, but considering the criminal code already stipulates a blanket perjury charge for parties involved in criminal litigation, the special clause is apparently unfair, or at least excessive, to lawyers.

The role of criminal attorneys - in most cases as agents of the prosecuted - contains an innate paradox. Like other ordinary citizens, they ought to help judicial authorities solve crimes in order to safeguard justice. However, their special duty on behalf of the prosecuted requires them to act against the procurators and win extenuation - by any possible legal means.

Under circumstances in which perjury is already forbidden by both lawyers' professional ethics and a Criminal Law article that applies to all, Article 306 may, by implication, restrict lawyers' performance in criminal litigation.

It is even abused sometimes by police officers and procurators to retaliate against attorneys who have frustrated their case against the accused. Many lawyers, as they joke, "turn pale" when talking about defending in criminal litigation.

The worst thing is that when lawyers become timid, there is little guarantee for the due rights of the accused.

Article 306 betrays an outmoded mentality which was obsessive about facilitating the strike on crime but neglected the importance of a check-and-balance procedure.

Criminal litigation is a two-sided story. Procurators stand for the just to fight crime, but the result may be the opposite if nothing challenges their use of power and nobody spares a thought for the accused.

Only equal footing between prosecutors and the prosecuted can ensure a fair litigious procedure, which is deemed a hallmark of the rule of law.

Such a system does not exclude the possibility of connivance of the guilty, especially with the influence of defending attorneys' professional skills. But it has proven, out of all pros and cons, to be the best option to strike a balance between substantive justice and procedural fairness.

In fact, key legal principles, such as "innocent until proven guilty," cross examination of evidence, and mandatory defence for the accused who refuse to employ or cannot afford attorneys, have been introduced in China's law in the wake of several major revisions in the past decade.

But the continued existence of Article 306 shows the evolution is not complete, and risks of failure of procedure and abuse of power persist.

The planned removal of the special perjury charge reflects a more rational sense on the part of legislators, which not only answers lawyers' sentiment for more favourable litigious rules, but also points to making the legal system fairer and more cognizant of individual rights.

(China Daily 04/12/2004 page6)