III. The Legal Profession: A General Lack of Independence
The political upheavals of the Mao era resulted in the dismantling of the Ministry of Justice and the abandonment of other legal institutions. Chinas formal legal system was only reestablished in 1978 by Deng Xiaoping, and the role of defense lawyers was reinstated the next year in the Criminal Procedure Law. But lawyers did not act only in the interests of their clients: the 1980 regulations on lawyers defined them as legal workers of the state.17 In 1989 the Ministry of Justice started to draft a law governing the profession of lawyers. It came into force on January 1, 1997, and recognizes lawyers as professionals providing legal services to society.18
During this same period, China enacted many new laws and regulations, reconstructed a court system, and elevated the concept of ruling the country according to law (yi fa zhi guo) to ideological and constitutional prominence.19
Alongside rapid economic development, this process led to a surge in the number of lawyers. 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 120,000 lawyers and 12,000 law offices.20 Yet this is still a low figure for a country the size of China, with a proportion of lawyers to the total population at just 0.9 per 100,000.21
In recent years there have been significant advances for the legal profession. The development of trade and external pressure for a rules-based system for business and Chinas accession to the World Trade Organization, as well as recognition that part of modernization is the development of the rule of law, have noticeably strengthened the autonomy of lawyers and law firms. 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 legitimating the role and usefulness of lawyers in society.
There have also been benefits for ordinary Chinese. Lawyers are playing a greater role than ever in representing victims of human rights abuses. They have helped gain recognition of grievances, promoted legal awareness among victims of abuses, provided legal aid and counsel for claiming judicial or non-judicial remedies, fostered better compliance with statutory procedural requirements from law enforcement agencies and courts, and monitored the enforcement of judicial decisions. This has been allowed as the CPC and government have encouraged the idea that ordinary citizens have legal rights, as a way of ensuring social stability, checking petty corruption, and channeling social grievances into the party-controlled judicial system.
However, lawyers lack independence and necessary protections under Chinese law. The legal system in which they operate still suffers from the systematic interference of party and government officials. The CPC, through its political and legal committees at the central and local level, continues to supervise and direct the work of judicial organs, including courts, procuracies, public security, and lawyers associations. In practice, party Committees play a central role in all the cases that are considered important or politically sensitive, consulting all institutions involved and deciding a case in conjunction with them.22
The Law of the Peoples Republic of China on Lawyers (hereafter, the Law on Lawyers), revised in 2001, is the chief statute governing the legal profession.23 It stipulates the qualification requirements, rights and duties, scope of professional activities, and management system of lawyers and law firms. In order to practice, lawyers must obtain a license from the judicial bureaus, and apply for renewal every year. Association with a law firm is an absolute requirement and lawyers cannot accept cases in their own name: all contracts are passed between the client and the law firm. The Law on Lawyers gives authority to the judicial administration departments of the Ministry of Justice (also referred to as judicial bureaus) to supervise and guide lawyers, law firms and lawyers associations.24 This means that judicial bureaus have the authority to require lawyers associations and lawyers to follow their instructions about how the legal profession operates, the range of professional activities lawyers can engage in, and at what level lawyers fees are set.
Lawyers are vulnerable to interference by judicial and other state institutions. The judicial administration departments and their equivalents at the local level have the power to issue warnings or sanctions, or to revoke the licenses of lawyers who violate the Law on Lawyers and commit other acts in respect of which penalties should be imposed.25 Although it is very difficult to know how many lawyers are penalized every year and why, the judicial authorities at different levels regularly publish reports about the number of law firms that have been stopped for rectification (tingye zhengdun), de-registered (zhuxiao), or issued administrative warnings (bei xingzheng jinggao); and about lawyers who have had their licenses withdrawn (diaoxiao), or have been suspended for a period of time (tingzhi zhiye), have been issued criticisms (tongbao piping), or temporarily de-registered (bei zanhuan zhuce). In practice, these decisions are almost impossible to challenge. The Law on Lawyers also empowers judicial departments to impose disciplinary penalties against lawyers, including cessation of practice, for acts in respect of which penalties should be imposeda circular definition allowing great discretionary powers.26 Through the annual renewal of lawyers licenses, the judicial administration departments are able to ensure the compliance of lawyers with their directives.27
Chinese lawyers depend greatly on cooperation from the law enforcement organs, or gongjianfa, to perform their duties. Standard practices such as accessing court documents and evidence held by the investigating organs, filing a case in court, or meeting with a client in detention are in practice achieved only at the discretion of these institutions. Lawyers commonly refer to the three difficulties (san nan) they face in their work: difficulties in seeing their clients, difficulties in accessing official documents (anything from the evidence held by the Public Security Bureau to arrest warrants), and difficulties in gathering evidence (from interviewing witnesses to obtaining evidence held by other state agencies).28 Lawyers who take on sensitive cases find that doing so jeopardizes their relationship with gongjianfa officials, such that their ability to make a living can be compromised.29 This too serves as a powerful deterrent.
The All-China Lawyers Association, the Chinese equivalent of a bar association, is also subordinate to the Ministry of Justice, from which it receives guidance and supervision. In practice, the ACLA must comply with instructions issued by the MOJ and regulate the profession in accordance with the directives of the MOJs department in charge of lawyers, the Lawyers and Notaries Bureau. All lawyers must join the local branch of the ACLA in order to practice. The head and secretary of the local lawyers association are generally appointed by the local judicial bureaus. A lawyer who has joined his or her local lawyers association is at the same time a member of the All-China Lawyers Association.30 Disciplinary proceedings against lawyers by the ACLA are not subject to independent judicial review. ACLA sanction proceedings have been used to retaliate against human rights and civil rights lawyers. For instance, Beijing lawyer Gao Zhisheng, Shanghai lawyer Zheng Enchong, and now-exiled Shanghai lawyer Guo Guoting all lost their licenses under administrative pretexts for their work in politically sensitive cases (Gao Zhishengs case is discussed further in Section IV, below).31
Lawyers routinely identify lack of independence as the structural challenge to their profession. As a comprehensive study on lawyers published by the Shanghai Academy of Social Sciences Press in 2005 writes, The core question in the reform of the legal profession is the self-governance of the profession. Lawyers should independently carry out their professional duties and not be subjected to interference from state organs, groups or individuals.32 Indeed, local power holders can easily use, or abuse, government channels or party channels, through the judicial bureaus and the lawyers association (whose leaders are selected by the judicial bureaus anyway), to preclude legal challenges brought by lawyers on behalf of plaintiffs. Such interventions are often made on the pretext that matters are sensitive or would jeopardize social stability. This situation had led many lawyers and scholars to blame the overall political structurein particular the one-party systemfor the current problems hindering the legal profession.33
In practice, if the local authorities judge that protesters should not be allowed to bring a lawsuit, they can instruct the lawyers association and the judicial administration bureau to act accordingly. A lawyer who took no heed of these instructions would be subject to sanctions either from the lawyers association or the judicial administration bureaus. For instance, Zhu Jiuhu, a lawyer who represented private operators contesting the confiscation of oil fields by the Shaanxi government, was repeatedly warned to drop the case or face economic and administrative retribution. When he refused to comply, he was put into detention by the local Public Security Bureau on trumped-up charges.34
17 Standing Committee of the National Peoples Congress, Interim Regulations of the Peoples Republic of China on Lawyers, Promulgated on August 26, 1980.
18 Law of the Peoples Republic of China on Lawyers, adopted May 15, 1996 (revised December 29, 2001), art. 2.
19 For a general account of legal reforms since 1978, see Stanley B. Lubman, Bird in a Cage: Legal Reform in China after Mao (Stanford: Stanford University Press, 1999); and Randall Peerenboom, China's Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002).
20 Chinas lawyers failing to provide nationwide service, Xinhua News Agency, July 10, 2006.
21 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).
22 Yuwen Li, Court Reforms in China: Problems, Progress and Prospects, p. 59, note 10, in Jianfu Chen, Yuwen Li, Jan Michiel Otto, eds., Implementation of Law in the Peoples Republic of China (The Hague: Kluwer Law International, 2002).
23 Standing Committee of the National Peoples Congress of the PRC: Law of the Peoples Republic of China on Lawyers, adopted May 15, 1996, revised December 29, 2001, effective January 1, 2002. At present there are over 150 additional laws, regulations, judicial interpretations, and professional rules for lawyers. See Regulations and Professional Standards for Lawyers in China (Beijing: China Law Press, 2005). [中国律师管理法规与行业规范, 北京：法律出版社, 2005.]
24 Law of the Peoples Republic of China on Lawyers (Law on Lawyers), art. 2.
25 Ibid., art. 44.
26 Ibid., art. 10.
27 For a detailed study of the difficulties faced by criminal lawyers see Ping Yu, Glittery Promise vs. Dismal Reality: The Role of a Criminal Lawyer in the Peoples Republic of China after the 1996 Revision of the Criminal Procedure Law, Vanderbilt Journal of Transnational Law, vol. 35: 827, May 2002, pp. 827-865.
28 There is a vast literature on the three difficulties (三难) issue. For a recent example see Experts advise for the prompt reform of the criminal procedure law Solving the three difficulties of defense lawyers, China Legal Publicity, July 8, 2006. [专家建议尽快修改刑诉法 - 解决刑辩律师三难, 中国普法网，2006-07-08.]
29 On this point see Ethan Michelson, The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work, Law & Society Review, vol. 40, No. 1 (2006), pp. 1-38. Michelson notes that [t]he financial success of lawyers in Chinas top corporate law firms working on international commercial transactions belies the grim reality that most Chinese lawyers are struggling for survival (p. 10).
30 Law on Lawyers, art. 39.
31 Joseph Kahn, Crackdown on Defense Lawyers Is Intensified in China, The New York Times, August 18, 2006; Detained rights activist and lawyer formally arrested, South China Morning Post, October 3, 2006.
32 Ye Qing and Gu Yuejin, eds., Study of the Lawyers System in China (Shanghai: Shanghai Academy of Social Sciences Press, 2005), p. 54. [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, 第54页.]
33 See Ping Yu, Glittery Promise vs. Dismal Reality, Vanderbilt Journal of Transnational Law (vol. 35: 827), p. 863; Yi Sheng, A Promised Unfulfilled: The Impact of Chinas 1996 Criminal-Procedure Reform on Chinas Criminal Defense Lawyers Role at the Pretrial State (Part 2), Perspectives, vol. 5, No. 1, March 31, 2004, in particular Section V.
34 Howard W. French, In China, whose oil is it? The New York Times, July 19, 2005.