April 29, 2008

III. China's Legal Profession

The President of the Supreme People's Court has issued important written instructions: courts at all levels must respect the professional rights of lawyers according to law…. and jointly protect fairness and justice.
-Notice of the Supreme People's Court, March 13, 2006[24]
The judicial organs will only give you what they want…. This is like a tiger blocking the road. Chinese lawyers are powerless.
-L.W., a Beijing lawyer, November 2007[25]

The development of the legal profession

China's recognition that a functioning legal system is necessary to support economic development, its accession to the World Trade Organization, and external pressure for a rules-based system for business have resulted in significant advances for the legal profession. The number of lawyers has surged dramatically over the past 20 years. In 1986 there were about 21,500 lawyers. This more than doubled to 45,000 by 1992, as the first private law firms emerged, largely to service the growing private business sector. There are now around 143,000 lawyers and 13,000 law offices.[26]Local bar associations have become more vocal in promoting the rights and interests of the legal profession. Academic debates and the internet have contributed to legitimizing the role and value of lawyers in society.

However, the dramatic increase in the number of lawyers has not yet been accompanied by the establishment of an accessible, equitable legal system. Vast numbers of Chinese citizens are still unable to use the system to seek justice. The proportion of lawyers to the total population remains low, at just 0.9 per 100,000.[27] The distribution of lawyers and law firms is disproportionately skewed towards the largest metropolises, such as Beijing, Shanghai, and Guangzhou, with few services available in the western and interior part of the country. Lawyers also remain oddly outnumbered by judges and prosecutors: in 2004 there were 190,000 judges and 125,000 prosecutors.[28]

The role of lawyers under Chinese law

Lawyers are regulated by the Law on Lawyers of the People's Republic of China (hereafter, the Law on Lawyers). This is the primary, but not the only, statute governing the legal profession. It was revised in October 2007 in part to strengthen the rights of lawyers in legal proceedings, but failed to offer better avenues of redress when these rights are violated. Although the revised law will become effective on June 1, 2008, some of its most crucial advances depend ultimately on the revision of now conflicting provisions in the Criminal Procedure Law, which takes precedence over the Law on Lawyerswhen the two are in conflict.

The crucial issue of the lack of independence of the profession remains unchanged. Under Chinese law, lawyers are not free to form their own professional associations. Lawyers, law firms, and bar associations remain under the authority of the Ministry of Justice (MOJ), which gives them "supervision and guidance."[29] The All-China Lawyers Association (ACLA), the Chinese equivalent of a national bar association, is nominally in charge of "self-governing" the profession, but it too is subordinated to the MOJ.[30]

The ACLA and its local branches must comply with instructions issued by the MOJ, and must regulate the profession in accordance with the directives of the MOJ's department in charge of lawyers, the "Lawyers and Notaries Bureau." All lawyers must join the local branch of the ACLA in order to practice,[31] and joining the local branch also means being a member of the ACLA.[32] The head and secretary of the local lawyers association are generally chosen by local judicial authorities.[33]

Lawyers and law firms are therefore placed under a system of joint authority by the MOJ and by the MOJ-controlled lawyers associations.  The judicial bureaus, the branches of the Ministry of Justice at the local level, assume "macro-control," including guidance, admissions, administration, and coordination, while the lawyers associations assume "micro-control" of body structure, professional duties, daily affairs, training, and education.[34] Disciplinary proceedings against lawyers by the MOJ or lawyers associations are not subject to independent judicial review.

The emergence of the weiquan movement

Partly in response to the inadequacy of legal remedies for large swathes of the Chinese people, who seem to have few avenues other than bringing their grievances to the streets, a movement of lawyers, law experts, and activists who try to assert the constitutional and civil rights of the citizenry through litigation and legal activism has emerged in past five to six years. The self-named "rights protection movement" (weiquan yundong) remains highly informal, and is mainly characterized by its willingness to take up and publicize cases that are politically sensitive because they involve citizens with grievances against local governments or state agencies.

"In essence," a recent academic study of the movement says, "lawyers and activists in the weiquan movement are generally always on the side of the weaker party:  (migrant) workers v. employers in labor disputes; peasants in cases involving taxation, persons contesting environmental pollution, land appropriation, and village committee elections; journalists facing government censorship; defendants subject to criminal prosecution; and ordinary citizens who are discriminated against by government policies and actions."[35]

By circulating articles, maintaining web pages, and mobilizing internet communities, concerned journalists and scholars, and the foreign media, members of the rights protection movement frequently expose the lack of legality in local government decisions and lack of credibility in central government claims to "ruling the country according to law."

Weiquan lawyers and activists are often openly critical of the deficiencies of the legal system, and in particular of the lack of independence of the judiciary. At the same time, the hallmark of the movement has been to keep all activities strictly within the realm of Chinese law.[36] Along with other legal activists, weiquan activists have been involved in providing legal advice in a number of high-profile cases of protests, such as those in Taishi (Guangdong province), Tangshan (Hebei), and Zigong (Sichuan), which have attracted widespread attention, including from the international media.[37]

Weiquan has now become the term now typically used in China to identify the type of legal activities commonly referred as "cause lawyering," or public interest legal work.[38]

[24]"Supreme People's Court Notice Regarding the Earnest Implementation of the Law on Lawyers and the Lawful Protection of the Professional Rights and Interest of Lawyers in Legal Procedures," March 13, 2006 [最高人民法院关于认真贯彻律师法依法保障律师在诉讼中执业权利的通知, 2006-03-13], http://www.bokee.net/company/weblog_viewEntry/899299.html (accessed April 7, 2008).

[25]Human Rights Watch interview with L.W., a Beijing lawyer, November 2007.

[26]"China has more than 143,000 lawyers," People's Daily Online, April 16, 2008,  http://english.peopledaily.com.cn/90001/90776/90882/6393774.html (accessed April 20, 2008); "Survey of the legal profession reveals a divide," Legal Daily, April 18, 2008 ["中国律师现状调查录:生存状况两极分化,"  法制日报, 2008-04-18], http://www.lawstar.cn/cac/120015872.htm (accessed April 20, 2008).

[27]Lawyers-to-population ratio is hardly comparable from one country to another because of the specificities of each legal system. For illustration purposes the figure per 100,000 people is 1.2 for Japan, 1.3 for India, 4 for France, 15.4 for the United Kingdom, and 32.7 for the United States. "China has a strong demand for lawyers," China Economic Net  (www.ce.cn), October 10, 2005, http://en.ce.cn/Insight/200510/11/t20051011_4902926.shtml (accessed August 3, 2006).

[28]Zhu Jingwen, Report on China Law Development: Database and Indicators (Beijing: People's University Press, 2007), Tables 1-32 and 1-33, pp. 34-35. [朱景文 (主编), 中国法律发展报告: 数据库和指标体系, (北京: 中国人民大学出版社, 2007), 34-35,  34-1, 34-2.]

[29]Article 4 of the Law on Lawyers of the People's Republic of China states that "The judicial administrative departments conduct supervision and guidance of lawyers, law firms and bar associations according to the present law." Article 4 of the Charter of the All-China Lawyers Association states that "Lawyers associations receive the supervision and guidance of judicial administrative departments." Standing Committee of the National People's Congress, Law on Lawyers of the People's Republic of China, adopted May 15, 1996 (last revised October 28, 2007, effective June 1st, 2008) [全国人民代表大会常务委员会:《中华人民共和国律师法》(20071028修订后) 200861日起施行], http://www.chinanews.com.cn/gn/news/2007/10-28/1061502.shtml (accessed November 2, 2007);  Charter of the All-China Lawyer Association, April 4, 1999 [中华全国律师协会章程, 1999428], http://law.chinalawinfo.com/newlaw2002/SLC/slc.asp?db=chl&gid=31669 (accessed November 2, 2007).

[30]Law on Lawyers, art. 43; Charter of the All-China Lawyer Association, arts. 2 and 3.

[31]Law on Lawyers, art. 45.

[32]Ibid.

[33]The Ministry of Justice has carried out some experimentation with bar associations electing themselves their president, although the process remains under tight scrutiny. In one recent case in Southern China, the president elected in this way was the former head of the local judicial bureau.  

[34]This system is referred to as the "joint administration system" (liang ge jiehe). See Ye Qing and Gu Yuejin, eds., Study of the Lawyers System in China (Shanghai: ShanghaiAcademy of Social Sciences Press, 2005), p. 98. [叶青, 顾跃进(主编),中国律师制度研究, (上海: 上海社会科学出版社, 2005), 98.]

[35]Fu Hualing, Richard Cullen, "Weiquan (Rights Protection) Lawyering in an AuthoritarianState," January 15, 2008, http://ssrn.com/abstract=1083925 (accessed February 9, 2008).

[36]Keith J. Hand, "Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People's Republic of China," Columbia Journal of Transnational Law, Issue 45 (2006), pp. 114-147.

[37]See Kristin Jones, "China's Hidden Unrest," Committee to Protect Journalists, May 2006; Thomas Lum, "Social Unrest in China," Congressional Research Service, May 8, 2006; Eva Pils, "Land Disputes, Rights Assertion, And Social Unrest in China: A Case from Sichuan," Columbia Journal of Asia Law, Spring/Fall 2005, pp. 235-292.

[38]Fu Hualing, Richard Cullen, "Weiquan (Rights Protection) Lawyering in an AuthoritarianState," January 15, 2008.