When I was just beginning as a lawyer, one of my clients complained that she had the sense I was not 100% convinced of the merits of her company’s case. She was obviously troubled by this and so I was troubled by it too. I went to a senior partner and explained the situation with the slant that I must have been doing something wrong to have instilled such doubts in my client.

The senior lawyer chewed me out for not having chewed out the client. He told me that a lawyer’s job is NOT to buy into a client’s case 100%, but to be the client’s voice of reason and counsel. He said that is what I should have told the client and if she did not like that explanation, she could walk and we would be better off for it. He was absolutely right.

And one of the things I love about the law is how logical and unemotional it is. It is based on applying legal principles to facts. Take the United States Constitutin’s First Amendment as an example. It grants freedom of speech. Freedom of speech is easy to like when the person speaking agrees with it. Freedom of speech is not all that difficult to like when the speech is something you do not particularly like.  But when freedom of speech becomes difficult to like is when you get an evil bigot like the Fred Phelps of the Westboro Baptist Church (I am sure 99.999999% of all Baptists wish he would not use that moniker) preaching how God hates fags, and doing so at a funeral for an American soldier killed in Iraq. Phelps believes God has come to hate America because we are too lenient with homosexuals and therefore God takes pleasure in the death of our servicemen. 

But, as exasperating as it sometimes is, the First Amendment does not care who is doing the talking or what that person is saying. That is both the cause of the frustration, but also of its ultimate beauty. There is an old saying that the law is blind.

The law, almost by its very nature, trends towards equality. It is hard to be a lawyer and believe in the value of laws without also believing in the importance of their being enforced equally. Does that always happen? Of course it doesn’t. In theory, I favor the death penalty. I have no moral problem with the execution of someone like Ted Bundy or Steven Hayes. In real life, I oppose the death penalty because it is more likely to be invoked against poor African-American males than against middle-class white females. The law is color blind, but human beings are not. I also cannot stomach the idea of even one wrongful execution.

I am rambling on about these things because China may soon have a landmark court decision regarding discrimination against those who are HIV positive. This case involves a school teacher in the city of Anqing in Anhui province. It is believed to be the first case in China regarding workplace discrimination against HIV carriers. Here are the central facts, according to the People’s Daily:

The department of education in Anqing had rejected Xiao Wu’s application for a job because he had tested HIV positive. Under the civil service’s recruitment policy, HIV carriers cannot be recruited as civil servants, Wei said in court.

However, under the Employment Promotion Law that took effect in 2008, it is illegal to reject any job applicant on the basis of an infectious disease.

I believe (though I am not certain) that the civil service recruitment policy is a provincial policy, while The Employment Promotion Law is a national law.  

The national law should trump the provincial law and I fervently hope the court applies the law blindly and unemotionally and appropriately administers the laws as written and by doing so, rules in favor of the plaintiff and in favor of fairness.

Laws and court decisions have the power to change minds and a decision in favor of the HIV infected plaintiff in this case could have that same power. If the court rules for the plaintiff, I will get emotional — in a good way. That will be okay because I am not a lawyer nor the judge in the case. 

What do you think?

  • Liu Haoyu

    I am an undergraudate student in the law school in China.
    Employment Promotion Law is formulated by the Standing Committee of the National People’s Congress of China. It has the highest legal validity.

  • Bill Rich

    Not just law, but also how law is practiced, changes the society. You can see that very clearly at how the laws are applied by everybody – government, business, individuals, media, etc. When those in power can, and will, do whatever is beneficial to themselves and friends and family, regardless of what the law says, while other less powerful must adjust their wants and needs to satisfy those in power no matter what rights and freedoms are granted to them by law, you get a society just the way it should be.

  • Orange King

    I have been working as a part-time secretary with the NGO that helped facilitate this lawsuit. We did a lot of cases, and almost every employment discrimination case filed or reported in the media is our work.
    The treatment of hepatitis b virus(HBV carriers) has improved. I strongly suggest you guys Google that because there is 100 million(yes, 100 million) HBV carriers in China that suffer all kinds of discrimination in education and employment.
    The HIV/AIDS scenario is quite another story. It’s more sensitive since the spread of the virus was due to official misconduct that took place in blood transmission, etc. And there were rights activists like Hu Jia and Wan Yanhai on those scandals, especially in Henan Province. Thankfully this case does not fall into that category.
    But one thing is extremely disappointing. You can try to click on the link under the reports about this case in popular portals like Netease, Sina, Sohu, etc. You will find most opinions expressed there actually support the discrimination against HIV/AIDS patients.
    That is no surprise, of course. My fellow Chinese people have little knowledge in science and even if they do, they doubt it. What’s more, may I dare to suggest, is that they are selfish. They don’t really care about HIV/AIDS patients, the ordinary people want to be away from them, as far as possible. And if that means they don’t have any opportunity at finding a job? So be it, as long as they don’t come near people, which psychologically is scary. Those who champion discrimination won’t think about what livelihoods could an HIV/AIDS patient make and they don’t have compassion with them-coupled with the mistaken belief that somehow they contracted the virus through dishonorable sex. And what could HIV/AIDS patients do if they have no living and driven into desperation, is not other people’s concerns. The Chinese are just selfish on this.Even if they knew the possibility of transmission is, say, 0.000001% in work places, they would object to work with a HIV-carrying guy. It’s the thinking of us stupid Chinese.
    That was also true with HBV carriers. But somehow hepatitis b is less deadly than HIV/AIDS, which decreases its stigma and the number is so large that popular protest against HBV carriers is less severe and obvious. So we have made great progress on that front. Go Google that.

  • Twofish

    Someday, I’m going to write a “birdwatcher’s guide to Chinese law”…..
    In the Chinese legal system. Only the national people’s congress can create a “law”. Local people’s congresses can create “decrees.” An administrative agency can create “rules.”
    If you have a provincial decree that banned HIV people from a job, it would be rather difficult for a court to overturn it, because courts do not have the explicit power to overturn a decree passed by a local people’s congress for conflict with national law. There is a rather complex and rarely used mechanism in the Legislation Law to overturn a local decree for conflict with a national law, but that involves appealing to the local people’s congress and then the NPC. One problem is that if you file a court case, then legally the court has to hear your case. A people’s congress can take your petition and legally toss it into the trash, which they probably will since they were the one’s that issued the decree.
    A court can implicitly ignore the local decree, but there are limits for what that can get you. One problem is a court can prevent the local government from doing something by ignoring a decree, but they can’t actively force a local government to do something, because that would involve *explicitly* overriding the decree which courts do not have the power to do.
    Now if you have an administrative rule, the court can ignore the rule in a particular situation, but they do not have the legal power to overturn that rule. What that means is that person A wins a court case and gets something, then the administrative agency can force person B to go through the same time and expense to go through the court and have their case overruled.
    That’s the bad news…… BUT….
    We aren’t talking about a decree. We aren’t talking about a rule. We are talking about a *policy*. Courts can override those. Rock beats scissors. Law beats policy. Even a local decree will beat national policy (although the structure of the people’s congress makes that highly unlikely). Now theoretically, a local people’s congress could pass a decree instituting discrimination against HIV carriers, but at that point, you could point out that the Politburo has been shaking hands with HIV carriers.
    Also, local peoples congresses and Party committees have legal staffs, so if a local people’s congress tries to pass a decree that violates national law, it will get stopped at the drafting stage. What will probably happen is that the legal office will note that the proposed decree violates national law. If the legal office is ignored, they’ll then raise the issue up the Party hierarchy and the people’s congress will get orders from the Party committee not to pass the decree since it violates national law. If someone keeps going at this, then they are just not going to get promoted, and may get fired.
    So in Chinese law, there is a whole mess of rules and procedures, which you need to understand if you want to get something done. I’ve been talking about “laws”, “decrees”, “rules”, and “policy”. I haven’t even started talking about “opinions”, “measures”, and “circulars.”
    Almost makes you want to hire a lawyer……
    Dan: The law, almost by its very nature, trends towards equality. It is hard to be a lawyer and believe in the value of laws without also believing in the importance of their being enforced equally.
    The problem is that there are some pretty awful and repressive laws in China, and you have to always remember that the ultimate purpose of the Chinese legal system as it exists now is to keep the Communist Party of China in power.
    Chinese employment law and land law is surprising progressive and strongly enforced, and one consequence of this is that there is a general belief in China that the law and the courts have quite a bit of legitimacy. However the consequence of this is that when the government puts dissidents in jail because they have broken the law (which they have since ultimately it’s the Communist Party that writes the laws), the public accepts that.
    Something that you do need to be careful about is that a lot of lawyers in the US come from a legal background in which the “equal protection clause” of the 14th Amendment was used to do a lot of social good. However, something to point out is that the way that the equal protection clause was used in the United States was part of a particular judicial, legal, political, and social ecosystem. In China, the ecosystems are different, so you have to either turn China into a copy of the United States (which few people in China want, and which people in the US really aren’t interested in because it’s been tried and failed in Iraq and Afghanistan), or you learn the rules and process of the Chinese legal and political system and then try to create different ideas and concepts for social good.
    The other thing that you have to be very careful about is not to take “legal fiction” too seriously. Something that is assumed when the Supreme Court makes a decision is that there is only one possible reading of the law, and that the Supreme Court figures out what it is. That’s a legal fiction. It’s a useful legal fiction, but it’s not literally true. The fact that “equal protection of the law” means what it does in the United States is the result of a century of US history and context. If you try to apply that directly to China, which has got a different history and context, then it’s not going to work. You can try to them make China a carbon copy of the US, but then you find that this is much too big an effort.
    What I’ve tried to do is to understand the Chinese legal and political systems enough to craft legal tools that work in China. Which means understanding the hair-splitting differences between laws and policy, and also understanding why laws are what they are, and why policies are what they are, and why various actors behave in the way that they do.
    So why *hasn’t* someone else written a “birdwatcher’s guide to Chinese law” yet. My guess is that it’s because professional lawyers already know this stuff. Non-professional lawyers don’t, but when a non-professional in China starts screaming about the law (and it usually does involve someone literally screaming), they are trying to invoke the law to create a “moral case” and not what most people in the United States would consider a legal case.
    One final bit. is that in the US, the law strongly works against creating a one party monopoly, and it’s designed to do that. If you have the Republicans in power, then the Democrats will try to use the court system to make sure that they don’t get steam rollered, and the Republicans will do the same thing, and since everyone knows that they will eventually lose an election, things get moved to the courts. It’s a really good system and it works well in the United States. The only problem is that because it works so well in the United States, this gives lawyers the idea that the law *inherently* pushes things toward multi-party states, whereas this is not the situation at all.
    In China, the law is designed to *reinforce* one-party rule, and it’s done a good job at it. Even the parts of the law that seem to promote human rights, actually were quite explicitly set up to reinforce party rule. For example, defendants in legal cases have some legal rights in China, and that was set up so that if you were a leader that lost a power struggle in the Party (think Hua Guo-Feng), you’d end up under house arrest rather than shot. Once you have leaders in the party know that they aren’t going to get shot if they lose a power struggle because the law prevents this, then they are less willing to fight to the death and more willing to compromise which keeps the party from fragmenting. Once the party does not fragment, then you can use the law to strongly repress anyone that tries to overthrow the party.

  • Twofish

    Dan: And one of the things I love about the law is how logical and unemotional it is.
    Strange. Because one of the things that I love about the law is how illogical and emotional it can be a be. One thing that I hate about mathematics is that you come up with a new proof, and so what? In law, the decisions that get made *MATTER* at an emotional level.
    Also, there is a lot of ways in which the law doesn’t respond to mathematical logic. There is a logic to the law, but it’s political and social logic rather than legal logic. For example, if I were being part of arguing a case before the Supreme Court, something that I would do (and which I’m sure that both sides are doing) is to read every single thing that they can about every single justice to see how they react to different arguments.
    Dan: But, as exasperating as it sometimes is, the First Amendment does not care who is doing the talking or what that person is saying. That is both the cause of the frustration, but also of its ultimate beauty. There is an old saying that the law is blind.
    Except that legally speaking that’s not true. The First Amendment is about two sentences, and if you take it literally, it says no such thing. It says that “Congress shall not ,,,,” and in this particular situation Congress is not involved at all. Gitlow v. New York says that the First Amendment applies to local governments, but that’s not directly in the text of the amendment, and it was not how that amendment was interpreted until the early 20th century.
    What has happened is that there are tens of thousands of pages of court documents that explain what the First Amendment means. Once of the things that you find a tons of exceptions, and you need people that have spent decades learning all of the intracracies of constitutional law to argue these sorts of cases.
    If it was obvious that the First Amendment prohibited the Fred Phelps’s conduct, then the Supreme Court would not have granted cert to hear the case. Now that the case will be heard, regardless of how it turns out, the Supreme Court will issue some set of new principles that will guide future cases. One thing to note is that the case by which anti-flag burning statutes was ruled unconstitutional (Texas v. Johnson) was decided 5-4 and since then the court has changed, so it’s not hard for me to imagine that the Supreme Court will use Snyder v. Phelps to overrule Texas v. Johnson.

  • Twofish

    King: And there were rights activists like Hu Jia and Wan Yanhai on those scandals, especially in Henan Province. Thankfully this case does not fall into that category.
    Yes. Thankfully. One thing that I would strongly suggest anyone that wants to get something done with through the legal system in China is to stay as far away from rights activists as possible. The problem is that rights activists can enormously complicate things by making any social dispute into a struggle against general oppression. If you have a court case in China that you want to win, you need to do everything you can to make sure that this *isn’t* a challenge to the Communist Party and to stay as far away from people that the Communist Party sees as threats to its power. Part of the reason that the Party makes some effort to move people into the court system is that they what to discourage people from moving outside the system, and if you’ve already decided to move outside the system, you’ve lost some bargaining power.
    One other thing that I’ve noticed about rights activists is how *horrible* they are at being lawyers. Most of the filings I’ve seen from rights activists are extremely angry, emotional, political manifestos that are just completely incompetent as actual legal filings.
    Getting back to the law. I like the law because it’s emotional, but it’s *controlled* emotion. You may hate the judge and the other party, and you make have extremely good reasons for hating the judge and the other party, but when you get down to make an argument and write the brief, you take all of that emotion and express it calmly and politely.

  • Twofish

    One other thing that I’ve found about activist lawyers is that they often make awful lawyers. A lawyer has to realize that their job is to represent a client. It’s usually not a good thing for a lawyer to represent themselves, and this also causes problems in NGO’s when you have a lawyer that deeply believes in the cause they are fighting for.
    Among some of the problems. You are much less effective as a lawyer if you cannot give the arguments for the other side as well as you can give your own side. If you are a good lawyer, you can represent either side equally well. The reason for this is that in a well-functioning legal system, it shouldn’t *matter* which side has the better lawyers, you have two sides with equally matched lawyers, and so the decision is based on the actual law. In the real world, you have have huge mismatches in the quality of legal skill, and using adversarial legal proceedings in situations where both sides don’t have equally good lawyers can be a problem.
    The other problem is that sometimes you just have to accept that the law is not on your side. If you are deeply attached to your cause, it’s just much more difficult to accept the fact that the law is working against you, and that you will lose a case. It’s even more difficult to tell other people in your cause because in a lot of activist groups, just telling people that the law is not on their side is seen as betrayal and defeatism.
    Personally, I find thinking about corporate and securities law to be a lot less stressful than thinking about criminal and human rights law. In corporate and securities law, when you have two large rich and powerful corporations fighting each other, you really don’t emotionally care who wins. With cases between large corporations, you don’t really care that much if the firm that you work for wins or loses.
    In criminal and human rights cases, it’s impossible not to care about who wins, and there are emotional stresses that you don’t get in corporate law.

  • anon this time

    @Orange King
    Knowledge of science is not necessarily a requisite for having a *rational* or *humane* POV towards HIV. I think it is only strong workplace discrimination and privacy law (and lucrative litigation) that prevents many people in the US with a solid understanding of health science from discriminating against HIV carriers. Ignorance is easier to fight than bias based on religious fundamentalism and sexual orientation, IMO.
    When you say “us stupid Chinese”, do you really mean “us” or “them”? It took a lot of much more developed nations a long time (and it’s still prevalent) to deal with HIV related stigmas and discrimination. From Dan’s article, progress looks like it’s being made. But in reading you describe your work, you are fighting the good fight, so add oil. 🙂

  • ZJ

    I like this and I like how the law can have a real impact on people’s lives. I pray the judge in this case does the right thing.

  • While I hope Xiao Wu wins this case, I’m not optimistic about the situation. I expect the city will quickly change its hiring policy so that the medical exam is done before the final interview instead of after (like in this case) and therefore they can cover up their rejection using other reasons.
    Further, its unfortunate, but the reality is that if he teaches and the parents found out about him being HIV positive, there would be a riot in that town.