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VII. Lawyers’ Reactions to the New Restrictions and the Government’s Response

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

The publication of the Guiding Opinions has generated considerable disquiet within the Chinese legal community. Lawyers and legal experts have expressed concerns about what they see as warnings against taking up mass cases, efforts to curtail their independence, and a worrying indication that the government intends to roll back hard-earned improvements in their status made since the 1980s.

At the time the Guiding Opinions were promulgated, the debate was allowed virtually no room in official media.  One significant exception to the general media silence on the issue was the publication of an extremely critical article in the China Economic Times, one month after the Opinions appeared on the ACLA website.¹³⁰  The article was entitled “In the End, Should Lawyers ‘Follow the Law’ or ‘Listen to Government Departments’?” and strongly criticized the Guiding Opinions, depicting them as a setback for the legal profession. A second critical article appeared a week later in the Oriental Morning Post, focusing on the threat to the professional independence of lawyers.¹³¹. These articles were widely circulated and commented upon on Internet legal forums, but the fierce reaction of critics was not directly reported in China’s official media.  On May 24, however, the Legal Daily, a publication operated by the Ministry of Justice, published an unusual article defending the Guiding Opinions, acknowledging that they had “attracted the attention of the public and a large number of lawyers,” while criticizing the “incorrect and biased understanding of the provisions” of those who saw the Guiding Opinions as a curb on lawyers (see also below).¹³²

The absence of independent lawyers’ organizations, which could speak out forcefully in defense of lawyers, and the tight constraints on public debate in China, meant that most of the critical debate on and comment against the Guiding Opinions has been on specialized Internet forums. (The ACLA and many local lawyers associations maintain electronic bulletin boards and forums, and there are thousands of legal websites across China that allow users to post comments. Some of the electronic bulletin boards are restricted to licensed lawyers who must register in order to access or post comments.) Lawyers’ comments clearly reflect that they view the Guiding Opinions as a rollback of their independence. They also stress that the Guiding Opinions will reinforce the impunity of local governments and officials who commit abuses—having authority over the local government’s judicial bureaus, local power-holders can order them to instruct lawyers in a way that makes the local government virtually immune from litigation. Party leaders have also undisputed authority over the local judicial bureaus through the Political and Legal Committee of the CPC, which statutorily “leads” their work. Lawyers also raise a range of other concerns, including how these Guiding Opinions reflect on the lack of independence of the ACLA, the consequences of the restrictions on contact with the media, the legal basis for the Guiding Opinions, and whether the regulations were targeting the weiquan rights protection movement.

Although academics are now mostly free to discuss any legal topic, publishing in newspapers or journals remains tightly controlled and some outspoken advocates of legal reforms have been blacklisted or temporarily suspended from teaching.¹³³ It is likely that scholarly comment will appear in professional journals in the future, but Human Rights Watch is not aware of any at the time of publication of this report. Organization of academic conferences requires the approval of the authorities of the host research institution, a process that allows topics that are judged politically sensitive to be weeded out. It is therefore hardly surprising that the most significant gathering of legal experts opposing the new Guiding Opinions took place not in a law school or research institution, but in a Beijing bookshop.¹³⁴ On June 14, prominent members of the legal community held a seminar in a Beijing bookshop attended by law professors, lawyers, and law activists on the new Guiding Opinions, in an attempt to organize a response to these new threats to the lawyers’ profession and the legal system. Despite the participation of some of the most well-known legal reformers and lawyers, including the former vice-chair of the Beijing Lawyers Association, as well as the very critical tone of the meeting, the event got no mention in the official press. (The seminar is discussed in greater detail below.)

A. Lawyers’ initial reactions

The initial reactions posted on the Internet forum of the ACLA website and on other local lawyers associations’ websites were unambiguous: “I just glanced at the regulations: I feel a great danger for lawyers,” read a posting on the ACLA’s bulletin board.¹³⁵ Dozens of similar postings appeared on local lawyers associations’ websites, legal electronic lists, blogs, and general discussion forums.

1. A blow to the legal profession

Lawyers generally perceived the Guiding Opinions’ stringent restrictions on the handling of mass cases as a warning from the government to dissuade them from representing these “sensitive” cases. One lawyer succinctly commented, “These Guiding Opinions give a message to lawyers: don’t take up mass cases.”¹³⁶

Indeed, the chilling effect was rapidly confirmed by other lawyers. A participant in the ACLA forum on the new regulations indicated for example that his law firm had conducted a meeting to dissuade its employees and partners from engaging in the activities listed by the new Guiding Opinions on mass cases:  

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.¹³⁷

The Guiding Opinions became ironically nicknamed “the incantation of the golden hoop”—a reference to the famous classical Chinese novel Pilgrimage to the West, where the cunning Monkey King (Sun Wukong) wears a golden hoop around his head. When his master recites the incantation, the hoop tightens, causing him insufferable pain.¹³⁸ “In substance [the Guiding Opinions] are putting another golden hoop spell on lawyers … This will tie down lawyers,”wrote one commentator, in one of many similar postings. ¹³⁹

Legal activists such as Xu Zhiyong, a law lecturer at Beijing University who has often been involved in defending mass cases, and Pu Zhiqiang, a lawyer specializing in media defamation who has represented politically sensitive cases, also voiced their concerns. Pu Zhiqiang told the Financial Times that the Guiding Opinons would “make lawyers fearful of accepting lawsuits by disadvantaged groups”—farmers and those forcibly evicted, for example—while  Xu Zhiyong told the South China Morning Post that the new obligation to report these cases “may attract problems and pressure” for lawyers.¹⁴⁰

Lawyers pointed out that, by virtue of being under the authority of the local government, the judicial bureaus’ most likely course of action when confronted with a case involving protesters would be to side with the government and restrict the activities of lawyers:

[I]n these mass cases, the so-called “relevant departments” are themselves frequently one of the parties. These kinds of requirements for lawyers [to seek instructions from these departments] are really the biggest perversion of the spirit of the law. ¹⁴¹

Another commentator echoed the widely shared perception that the new restrictions would make lawyers irrelevant in the eyes of citizens seeking redress:  

If a lawyer has accepted a case of forced eviction, forced resettlement, or dismissal, he must provide legal aid to his clients. But according to the requirements of the ACLA, he must also closely collaborate with “the relevant government departments,” “report the circumstances,” and accept “guidance and supervision of the judicial administrative organs.” Can this kind of lawyer still obtain the trust of the plaintiff(s)?¹⁴²

A commentator on the ACLA’s forum stressed that, in many cases, the power of the national and of local governments was largely unconstrained by legality:

In a country governed according to law, this kind of problem [listening to government departments or following the law] doesn’t present itself. But in China, in reality power is stronger than the law. A lawyer can only make choices according to his own circumstances and the local circumstances.¹⁴³

In other words, a lawyer relies very much on having good relations with gongjianfa (police, procuracy, and courts) officials, whose cooperation he needs to carry out his professional duties.  Lawyers privately confided that gongjianfa officials often try to impress on lawyers that the claims of their clients are groundless or unreasonable and that in view of the larger imperative of maintaining social stability they should reject the case or refrain from bringing a lawsuit in court.

2. Criticizing the ACLA

In addition to the alarm generated by the Guiding Opinions themselves, commentators also voiced frustrations about the role of the All-China Lawyers Association. Rather than defending the independence of the legal profession, the ACLA had in fact itself helped inflict the damage.

Some of the points made by the ACLA’s Guiding Opinions are valid… of course we should be concerned with the resolution of this type of cases. But because the ACLA is a self-governing body, its foremost concern should remain the independence of the lawyers’ profession.¹⁴⁴

Another lawyer expressed his disappointment in these sarcastic terms:

In truth this shows that “governing the country according to law” in reality is nothing but a slogan…. The ACLA limits itself to protect the realization of a “harmonious society,” avoids putting itself in trouble, it’s hopeless … We should thank the ACLA for this, our ACLA is really great!¹⁴⁵

Other commentators defended the ACLA, pointing out that because it is statutorily under the “guidance and supervision” of the Ministry of Justice, it had no choice but to carry out the instructions:

For a long time in practice the lawyers association at all levels has not been able to avoid the coloration of being “half-official.” Even though they are technically a social organization, the head and the secretary are chosen or controlled by the justice administrative organs… When lawyers most need the organization to fight for their rights and benefits, the lawyers association is often silent. ¹⁴⁶

Members of the ACLA have long advocated for a more vigorous role for the association in defending lawyers. In 1998 the ACLA established a Committee for the Protection of Lawyers’ Legal Rights and Interests, although it still has very little sway and has been silent on the issue of the Guiding Opinions.

3. Pledging not to be intimidated

The most significant response to date to the Guiding Opinions from the legal community came from the seminar organized on June 14, 2006, by prominent legal figures in Beijing, and chaired by the former vice-chair of the Beijing Lawyers Association, Zhang Sizhi. The small-scale seminar brought together law professors, criminal lawyers and weiquan activists. Among them were prominent legal experts, including He Weifang (Peking University), Zhang Zhiming (People’s University), He Bing (Chinese Politics and Law University), and Mo Shaoping, a criminal lawyer who has defended many dissidents and politically sensitive cases in the past (including the case of the New York Times researcher Zhao Yan).

Zhang Sizhi (who has often been referred to as the “conscience of the Chinese legal community” for his historical role in promoting the legal profession)¹⁴⁷ reportedly termed the Guiding Opinions “a disaster” that was “sending back the legal profession to the situation of the 1980s,”¹⁴⁸ when lawyers could only be employed by the state.¹⁴⁹ “From the overall principles to the detailed content, everything is wrong in these Guiding Opinions,” the Hong Kong newspaper Ming Pao reported him as saying.¹⁵⁰

Corroborating the general view that the Guiding Opinions were designed to intimidate lawyers against taking mass cases, Zhang urged lawyers to continue to take up these cases, even if it landed them in trouble with the authorities: “I am ready to shield you with my own body. I am already almost 80 years old, but you have long days before you, [and] China will need your contribution.”¹⁵¹ 

A renowned legal scholar, He Bing contested the legality of measures restraining lawyers handling mass cases, which overstepped the Charter of the ACLA and the Law on Lawyers. Fu Dalin, a professor from Xi’an Political and Legal University, had made a similar point in a posting on the forum of the ACLA: even though the Law on Lawyers stipulates that the lawyers are “supervised” by the justice departments, such supervision was not intended to allow intervention in specific cases:

This supervision [by the judicial bureaus] must be a lawful supervision and guidance for lawyers who violate the law in their profession, and must be a macro-guidance within the law, it cannot on any pretext become a basis for interfering in a particular case that is being lawfully handled by a lawyer.¹⁵²

Other participants, such as He Weifang, criticized the Guiding Opinions as an attempt by the central authorities to cover up protests and government-committed abuses. He Weifang argued that the Guiding Opinions were part of a “hysterical reaction” from the authorities to the rise of protests in recent years. “The authorities want to put out the fire by putting down the lawyers,” he reportedly said, urging lawyers not to be intimidated.¹⁵³  He pointed out that the new Guiding Opinions limited the normal operations of the lawyers’ profession, harmed the fundamental principles of the lawyers’ professional organization, and resulted in the lawyers losing the right to handle cases independently.¹⁵⁴

B. Government response

Although the government prevented a public debate on the Guiding Opinions, the strong reaction of the legal community prompted the authorities to respond publicly.

1. Defending the Guiding Opinions

In May 2006 the Ministry of Justice took the unusual step of responding indirectly to the criticisms in an article defending the Opinions in the Legal Daily, a publication it runs. Noting that the new Guiding Opinions had “attracted the attention of the public and a large number of lawyers,” the article disputed that the objective was to limit the ability of lawyers to operate. The principle behind the new regulations, the Legal Daily stated, was solely to “safeguard the legal rights” of lawyers handling mass cases.¹⁵⁵ The Legal Daily’s argument reflected clearly that establishing the rule of law was not the primary goal of the Guiding Opinions:

Some articles pointed to the provision mandating that lawyers report when handling such cases, and, seizing this point while neglecting the rest of the content, criticized the fact that the Guiding Opinions limited and restricted the freedom of lawyers to handle cases. This indicates that some people have an incorrect and biased understanding of the provisions and background of the Guiding Opinions, as well as of their aim and significance.¹⁵⁶

The terms “incorrect and biased understanding” have strong political overtones, making use of a language habitually directed towards what the party identifies as political criticism.  

At the same time, the head of the ACLA, Yu Ding, also rejected the notion of lawyers’ independence from the government, arguing that

The ACLA is a professional social organization under the supervision and guidance of the Ministry of Justice. According to the regulations, the ACLA should communicate… with the Ministry of Justice before getting involved in a big case.¹⁵⁷

Yu argued that the Guiding Opinions were designed for the purpose of “bettering the ability of lawyers to resolve contradictions between citizens and the government,” and “offer[ing] better protection for the security and interests of lawyers, so as to avoid conflicts with the government.”¹⁵⁸

Yu also reiterated the threat that lawyers violating the new regulations would be penalized by the ACLA:

According to disciplinary standards of the profession, if a lawyer violates the regulations, the ACLA can discipline him by handing out a suspension or issuing a warning. ¹⁵⁹

Wang Cailiang, a Beijing lawyer who contributed to the initial drafting of the Guiding Opinions, also argued that reinforcing the links between lawyers and governmental agencies was of benefit to both lawyers and social stability. Wang justified the drafting as a way to encourage more lawyers to take on mass cases:¹⁶⁰

Two problems are at the origin of this lack of willingness to take mass cases…. One is that local regulations in some areas prevent the filing of mass cases, leading vulnerable populations to be even more vulnerable. Another one is that because of the [social and political] factors behind these cases, lawyers are unwilling to take up these cases due to the risks attached. ¹⁶¹

Wang did not explain why curbing the independence of lawyers rather than reinforcing their protection was the logical solution.  Rather, he merely stated in vague terms that the new regulations were “appropriate” to the “national conditions”:¹⁶²

These Guiding Opinions undoubtedly benefit the protections of the legal rights and benefits of the vulnerable populations, and are beneficial for the development of the proper role of lawyers in social building and social harmony. The regulations establish a reporting and communication system, this fits the present national conditions. Even if it adds to the lawyers obligations, considering it from the general situation of social stability, it is nevertheless appropriate. ¹⁶³

Appealing to “present national conditions”and the imperative to maintain “social stability” is the most common justification by the government for conducting politically motivated repression against perceived dissenters or critics.

2. Blaming Western enemy forces

Local authorities have explicitly justified the Guiding Opinions on the grounds that exposing protests and sensitive cases would embarrass the party and the government. For example, the Henan authorities listed “criminal cases of high-level officials” as a category of sensitive cases that could “affect the general political situation,”¹⁶⁴ while Shenzhen listed “violations of people’s interests by government departments,” and “unfair decisions by law enforcement agencies” as cases where lawyers were prohibited to talk to the media without prior approval.¹⁶⁵

The head of the Judicial Bureau of Zhengzhou, Henan province, justified the curbs on grounds of unspecified plans by “elements of the democracy movement” to use the legal community to undermine the authorities:

Elements of the democracy movement and overseas organizations of the evil cult Falungong also plot to use lawyers as a tool to pressure the party and the government. Looking at the domestic situation, nowadays…. it is a period when contradictions between the people arise, crime rises, and the fight against enemies is complicated.¹⁶⁶

He went on to suggest that the Guiding Opinions were crucial to stemming the tide of protests, which he implied were being instigated by foreigners: 

Sensitive cases of all kinds and mass incidents multiply ceaselessly. This augmentation must be solved in a legal manner…. Lawyers who take up sensitive and mass cases must resolve the contradictions according to law. If not, these cases could easily degenerate, to the advantage of a few individuals with ulterior motives in the country and to Western enemy forces abroad, affecting social and political stability. Therefore, we must remain highly vigilant, and absolutely not let the Western enemy forces’ plans succeed.¹⁶⁷

The allegation that protestors’ lawyers were supported by foreign forces had similarly been leveled by the Guangdong authorities in the wake of the Shanwei incidents, Dongzhou prefecture, where the police fired at protesters, killing at least three.¹⁶⁸ The Public Security Bureau circulated a report shortly after the killings, blaming a succession of collective protests on “disputes over so-called rights protection” issues and accused “hostile forces” of politicizing and inciting the masses over issues of farmers’ rights. The report also accused activists of “taking advantage of individual incidents”—the occurrence of protests or crackdowns—to write essays stirring up public opinion.¹⁶⁹

Discourses that associate vigorous legal activism with a political challenge are in line with remarks made by Politburo member Luo Gan on “Strengthening the political thinking of political and legal ranks” on April 11, 2006.¹⁷⁰ Luo Gan called for strengthening the “political and national security awareness” as a way to “strengthen our fight against opponents.”¹⁷¹ He listed “those who, under the pretext of rights protection [weiquan] carry out sabotage” among the enemy forces against whom “forceful measures” must be adopted, along with “people with ulterior motives who use internal contradictions within the people to create disturbances, who use Falungong and other evil sects to stir up trouble, and who use the ‘three forces’ [separatism, extremism, and terrorism] to carry out terrorism and separatist activities.”¹⁷²

Against such a politicized background, the Guiding Opinions act as a strong deterrent for lawyers to get involved in mass cases, which are explicitly defined as being politically sensitive.