New Regulations Cast Shadow on Legal Reforms
December 13, 2006
These regulations relegate lawyers to the role of government informers and Ministry of Justice subordinates.
Sophie Richardson, deputy Asia director at Human Rights Watch.

(Hong Kong) - China should repeal restrictions on lawyers handling collective disputes and representing protesters, Human Rights Watch said in a new report released today.

The new restrictions signal an end to a potentially promising era of legal reform and may even exacerbate widespread social unrest as citizens are denied meaningful legal avenues to solve disputes often caused by local officials’ abuses of power. Chinese lawyers have described the regulations as “a step backwards.”

“These regulations relegate lawyers to the role of government informers and Ministry of Justice subordinates,” said Sophie Richardson, deputy Asia director at Human Rights Watch. “If legal avenues look futile to protesters, it could intensify increasing levels of social unrest.”

The 71-page report, “‘A Great Danger for Lawyers:’ New Curbs on Lawyers Representing Protesters,” details the “Guiding Opinions on Lawyers Handling Mass Cases,” which were introduced in March 2006, and discusses subsequently adopted local variants. The report explains how the Guiding Opinions let local authorities interfere in cases involving 10 or more plaintiffs, making it more difficult for the cases to get a fair hearing in court. Human Rights Watch said that the new regulations also discourage lawyers from talking to domestic or international media, require that they get their firms’ permission to take on such cases, and hold lawyers liable if disputes “intensify.”

China has witnessed an explosion of social unrest in recent years, fueled by rising economic disparities, endemic abuses by unaccountable local officials, and an acute lack of access to justice. Issues such as illegal-land seizures, forced evictions, relocations from dam areas, environmental pollution, unpaid social entitlements and administrative malfeasance have become burning social issues. According to official Chinese government statistics, an average of 200 protests take place on any given day – quadruple the demonstrations a decade ago.

Human Rights Watch said that an independent legal profession is vital for ordinary people to exercise their fundamental rights – such as freedom of expression, association, assembly, and petition – under Chinese law, the Chinese constitution, and international law. Constraining the ability of lawyers to litigate on citizens’ behalves is tantamount to constraining those rights.

“The duty of lawyers is to the rule of law and their clients,” said Richardson. “The Chinese government has to allow lawyers to operate free of interference in all cases, especially in cases about official abuse – otherwise the situation is likely to be anything but stable.”

Chinese authorities have justified the new restrictions on the grounds that they will help preserve social stability and protect lawyers handling mass cases. But Chinese lawyers say the regulations will encourage interference by local governments and make officials virtually immune to challenges in court. Many Chinese legal professionals view the Guiding Opinions as an attempt to roll back their hard-won independence in day-to-day legal affairs.

The report suggests that the Guiding Opinions were promulgated as part of an effort to quash the nascent “rights protection” (weiquan) movement. This loose assemblage of lawyers, legal scholars and activists attempts to defend through litigation the constitutional rights of Chinese citizens who have been abused by predatory and unaccountable officials. Many rights defenders have themselves become victims of human rights abuses at the hands of such vindictive officials who act with impunity.

Even legal initiatives cautiously endorsed by the government, such as public interest litigation in consumer rights and anti-discrimination impact litigation, could be jeopardized under the new restrictions.

“The Guiding Opinions may have been intended to target only the rights protection movement,” said Richardson. “But instead, these restrictions make all lawyers vulnerable to arbitrary interference by state actors and roll back the hard-earned measure of independence lawyers have achieved in recent years.”

Despite overall improvement for lawyers and their clients since the enactment of the Law on Lawyers in 1996, progress remains tenuous and open to reversals. Extensive restrictions require lawyers to: renew their licenses annually; limit the independence of bar associations; and provide a greater role in judicial procedures for the police, the procuracy, and the courts than for lawyers, among others.

Human Rights Watch called on the Chinese government to repeal the Guiding Opinions and its local variants, and to make the Chinese bar fully independent. Human Rights Watch also appealed to the international community to support the work of Chinese rights activists and civil rights lawyers, and to press the government to guarantee the independence of the legal profession.

“The adoption of the Guiding Opinions is a serious setback for access to the rule of law in China – a make-or-break issue for China today,” said Richardson. “The international community should raise these concerns with the Chinese leadership and speak publicly in support of full protections for lawyers and rights activists.”

Quotes from the report:

“[I]n cases that have a political influence … the lawyer handling the case must respect political and propaganda discipline.”
– Henan Regulations on “Strengthening the Supervision and Guidance for Lawyers” Representation in Important and Sensitive Cases and Mass Cases,” March 18, 2006

“Lawyers who handle mass cases should accept supervision and guidance by judicial administration departments.”
– Guiding Opinions of the All-China Lawyers Association on Lawyers Handling Mass Cases

“These Guiding Opinions give a message to lawyers: Don’t take up mass cases.”
– Posting on the internet bulletin board of the All-China Lawyers Association

“From the overall principles to the detailed content, everything is wrong in these Guiding Opinions.”
– Zhang Sizhi, former vice-chair of the Beijing Lawyers Association

“When 3,000 households were evicted … to make way for the Olympics village project, not one person petitioned. … This is an example of lawyers participating successfully in the resolution of a mass case.”
– People’s Daily, June 20, 2006

“The Guiding Opinions have attracted strong public denunciation. … They are a step back for lawyers and a disgrace for the entire legal profession.”
– Posting on a bulletin board by a lawyer from Henan province

"Two days ago, the law firm I work for held a meeting to convey the spirit [of these Guiding Opinions]. As a result, lawyers are only allowed to speak about law, and must not incite petitioning activities, disturbances, sit-ins, and expose cases to the media. All this is not allowed … otherwise, you’re done.”
– Posting on internet bulletin board of the All-China Lawyers Association

“[W]ithout having received approval from the relevant departments, [lawyers] must not accept any interview with foreign media.”
– Shenzhen Municipality Judicial Bureau, Provisional Regulation on Lawyers Handling Sensitive and Mass Cases, June 29, 2006

“The authorities want to put out the fire by putting down the lawyers.”
– A Chinese law professor at a Beijing forum

“[I]f a lawyer violates the political discipline, the propaganda discipline or causes problems in a mass case incident, he must be disciplined … and receive a suspension penalty.”
– Guiding Opinions on Lawyers Handling Mass Cases

“[L]awyers must not … use the media to bring pressure to bear on government bureaus or judicial organs.”
– Shenzhen Municipality Judicial Bureau, Provisional Regulation on Lawyers Handling Sensitive and Mass Cases, June 29, 2006