The Guiding Opinions of the All-China Lawyers Association on Lawyers Handling Mass Cases were adopted on a trial basis on March 20, 2006, by the Standing Committee of the ACLA.60 They were not made public until April 15, when they were posted on the website of the ACLA. Administrative measures adopted on a trial basis are fully operative and generally constitute the first step towards more permanent statutes, which are often more constraining.61
The Guiding Opinions open with a preamble explaining the goal and basis of the regulations, followed by five sections covering the definition of mass cases and the general responsibilities of lawyers; the requirements for handling relationships with clients, judicial agencies, the government, the media, and the public; the requirements for the acceptance of mass cases by law firms; the duties of local lawyers associations; and legal liability. The Guiding Opinions recognize the positive role of lawyers for the legal system, noting that [l]awyers who intervene in mass cases are helpful to the government, enterprises, and other opposing parties in their lawful handling of matters and, when handling individual cases, help promote judicial and legislative activities and lawful administration by issuing legal opinions and suggestions.62
Mass cases are defined as those involving 10 or more plaintiffs who have initiated a common lawsuit or a series of legal proceedings on a common matter.63 The preamble refers specifically to issues of land confiscation, forced eviction, relocation from reservoir areas, enterprise restructuring, environmental pollution and other aspects of the protection of the rights and benefits of rural residents. 64 These cases usually involve complex social, economic and political factors, and have varied impacts on state and society that cannot be ignored.65
All but two of the provisions of the Guiding Opinions set forth new restrictions and additional duties for lawyers handling mass cases, so as to regulate and guide the work of lawyers handling these cases.66 Section V states that lawyers are to abide by these Guiding Opinions when taking on important sensitive cases. The Guiding Opinions cover not only litigation (su song) but also other forms of professional services, such as providing advice for non-litigious (fei susong) resolutions such as mediation or conciliation or petitioning through the Letters and Visits (petition) system. They impose new requirements for lawyers in their relations with plaintiffs, lawyers associations, justice bureaus, government departments, and the media. In effect, the Guiding Opinions limit the ability of lawyers to prosecute some of the most important kinds of cases regarding human rights in China today.
A central problem with the Guiding Opinions is the vagueness of the language contained in many key provisions, which opens the door to arbitrary interpretations by the authorities (terms such as sensitive or major impact cases and cases that have adverse consequences, or criteria such as good political quality, interfering with the normal operations of the state agencies, or a great sense of social responsibility). This is particularly disappointing in a document produced by a legal institution.
Two further provisions provide that local lawyers associations must help safeguard lawyers lawful rights67 and that cases initiated before the issuing of the Guiding Opinions must be brought into conformity with the new requirements.68 Below we set out in greater detail key provisions of the Guiding Opinions, and Human Rights Watchs related concerns.
The Guiding Opinions state that, after a lawyer has accepted a mass case, he or she must accept the guidance and supervision of the judicial bureau.69 Lawyers must also promptly and fully communicate with the bureau, and assist the judicial agency in ascertaining the facts.70 The exact extent of the guidance and supervision is not defined, which allows for arbitrary interpretation by the authorities.
The Ministry of Justice, an administrative organ under the State Council, oversees judicial bureaus and departments at the provincial and local levels. These judicial agencies are administrative entities rather than part of the court system.71 The authority wielded over the judicial system by the partys Legal and Political Committees are such that they can easily instruct the judicial authorities to use the Guiding Opinions to bar lawyers from taking on sensitive cases that could result in exposure of government abuses.
By requiring lawyers to accept the instructions emanating from the local judicial bureaus, the Guiding Opinions further open the door to interference of unscrupulous local authorities. In practice, on account of the hierarchical structure of local governments, higher-level governmental departments and party committees can issue instructions to their subordinated judicial bureaus about cases in which the local government itself is the defendant. When the authorities tried to rein in Gao Zhisheng (before ultimately arresting him a few months later, see above), the Beijing Judicial Bureau handed him a list of cases and clients that were off limits.72
This leaves the plaintiff seeking redress little chance of success. For example, lawyers representing rural residents displaced by a highway project would have to accept the guidance of the departments of the very authorities that had authorized the eviction in the first place. Many of the most acute protests in recent years have been triggered by local governments attempts to pay derisory compensation for taking over rural land, in the knowledge that farmers would have no effective way to contest the legality of the decision. In June 2006 an official from the Ministry of Land and Resources acknowledged that more than one million cases involving land-related irregularities had built up in the previous two years.73
Even less politically sensitive initiatives that have been endorsed by the government, such as public interest litigation in consumer rights and environmental protection areas, could find themselves in jeopardy under the new Guiding Opinions.
Section II of the Guiding Opinions requires a lawyer to promptly and fully communicate with the relevant justice bureau about mass cases as well as actively pass information about the dispute to the judicial agency, and assist [that] agency in ascertaining the facts. If lawyers discover problems that may intensify the dispute, or discover that the dispute may escalate, they must immediately report it to the judicial authorities.74 Lawyers are also instructed to avoid the distortion of the details of the case or false testimonies that create a situation where the popular mood becomes unstable.75If this is the case, the lawyer is obliged to promptly report the situation to the relevant government departments.76
These provisions negate the principle of confidentiality between lawyer and client and quash the ability of plaintiffs to enjoy meaningful legal representation. The contradiction is particularly acute in cases where one of the parties is precisely the authorities to which the lawyer must report: in many of the cases of local protests that have been documented, local governments not only refused to entertain the plaintiffs grievances, but also intimidated or retaliated against them.77 Lawyers routinely complain that local governments are the most significant source of external interference in preventing access to justice.78
The Guiding Opinions add a second layer of controls over individual lawyers and law firms by requiring that they communicate with and receive the supervision of the local lawyers association. Even though lawyers associations are already under the administrative supervision of the judicial bureaus, the Guiding Opinions establish specific requirements for mass cases that do not exist for other types of cases. When a lawyer accepts a mass case, he must immediately report the case to the local lawyers association.79 A law firm retained for a mass case must also report it to the lawyers association to which the firm is subordinate.80
The lawyers associations must report and share information on these cases with the judicial bureaus,81 and have the responsibility to supervise, regulate, and safeguard lawyers handling of mass cases.82 In mass cases that have or are expected to have a major impact, the associations are also required to promptly communicate and coordinate with the relevant [governmental] bureaus.83
In practice, a lawyer involved in a case that the local authorities wish to keep out of public view would have to report developments that may lead to publicity or protests by informing the government of the intentions of his clients. For example, a lawyer representing villagers who have taken a polluting factory to court would have to alert the government authorities if he or she were to learn that they intended to hold a sit-in in front of its gates.
Lawyers associations have the authority to look into how a lawyer is handling a case and to put forward suggestions.84 They can propose or remind each partys lawyers to enter into mediation and negotiation, and to resolve conflict.85 If asked by a law firm,86 they can also issue directly an opinion to the masses.87
The Guiding Opinions introduce for law firms requirements supplementary to the Law on Lawyers regarding the steps by which they accept cases. These serve as additional deterrents to lawyers who want to take up mass cases.
Section III states that the initial consultation with the plaintiffs must be conducted by a minimum of two lawyers of good political quality and abundant experience.88 The decision to undertake a case must be decided by at least three partners.89 The director of the law firm assumes full responsibility for oversight and supervision.90 Law firms that decide to take a case must complete a comprehensive record of their acceptance of the case91 and promptly report it to the local lawyers association.92
These requirements seek to hold firms explicitly responsible for the deeds of their lawyers when they handle mass cases. Requiring the full approval of at least three partners of the firm may be sufficient in many cases to dissuade lawyers from engaging in such cases by spreading the responsibilityand therefore the consequencesof taking up mass cases from individual lawyers to groups of partners.
The provision requiring lawyers to be of good political quality places political loyalty to the CPC over professional responsibility or the right to counsel. In the Chinese political lexicon, the requirement to be of good political quality is understood as compliance with party directives. The CPC relies on lawyers who are themselves party members to form the backbone of the legal profession. One of the roles of the judicial bureaus in charge of lawyers is to organize political indoctrination sessions for lawyers. In some localities, attendance at these meetings is compulsory for the renewal of law licenses.
Under article 41 of the Chinese constitution, citizens have the right to petition any state organs for violation of the law or dereliction of duty. Millions of petitions are filed every year, and thousands of people travel to Beijing to petition the central authorities when they are unable to obtain redress at the local level.
Two clauses of the Guiding Opinions pertain to the provision of legal services to plaintiffs who are petitioning through the Letters and Visits system. The Guiding Opinions prohibit lawyers from instigating and participating in petitioning activities with or on behalf of their clients.93 This prohibition is a further curtailment of their independence and a violation of both their clients and their own constitutional rights to petition.
Despite its abysmally low rate of success, collective petitioning (jiti shangfang) constitutes a way for citizens sharing the same grievance to organize, publicize, and seek the intervention of higher authorities to intervene in their cases, and is often conducted in conjunction with ongoing legal processes and various forms of protests.94 As such, it is seen by the authorities as a potential factor in, or indicator of, social unrest.95 In recent years a number of prominent lawyers and legal experts have helped protesters draft and circulate petitions, including to media organs and government departments.96
In 2005 the government also launched a campaign to resolve petitioners grievances that in some cases involve the assistance of local lawyers. Yet in these instances the Guiding Opinions now stipulate that lawyers must persuade their clients not to take their petitions to higher levels or to organize mass petitions.97 Instead, they instruct lawyers to discourage collective or higher-level petitioning.
The absence of petitions therefore becomes a criterion of the successful resolution of a mass case in the eyes of the authorities. When 3,000 households were evicted to make way for the Olympics village project, an article published in the Peoples Daily exemplified, not one person petitioned.
The requirement that lawyers dissuade their clients to exercise their constitutional right to petition is clear interference with the duty of the members of the legal profession to represent their clients.
The Guiding Opinions warn lawyers to restrict contacts with the media. Lawyers must be cautious in their commentary and avoid stirring up news.99 They must also exercise caution in their contacts with overseas organizations and media.100
The role of the media in publicizing cases, particularly cases of manifest injustice, has grown significantly with the spread of the Internet. Faced with powerful local authorities who often are able to prevent legal challenges to their decisions, many lawyers try to generate pressure through the media.101 Weiquan lawyers and law academics have also become a primary source of information about protracted disputes and unrest incidents. It is characteristic of the weiquan movement that it often involves coordination between local activists, lawyers and legal experts, and investigative journalists.102
Although the Guiding Opinions do not prohibit lawyers from talking to the media, they nevertheless specify that they should be careful, exercise caution, and avoid stirring up news, without defining these terms or clearly stating the sanctions for violations.103 This suggests that a lawyer who actively mobilized the media on cases or events that the government considers an embarrassment would be liable to sanctions. In subsequent comments after the promulgation of the Guiding Opinions, official media have denounced lawyers who blacken the country by disclosing or commenting on mass cases.104 Suggesting that lawyers exercise caution in talking to foreign organizations further curtails their independence. Foreign reporters have also been subjected to state harassment while covering rural protests.
The Guiding Opinions state that lawyers must safeguard the countrys stability105 and that the correct handling of [mass cases] is essential to the successful construction of a socialist harmonious society.106
The Chinese government regularly invokes the specter of instability as grounds for curtailing basic rights. The term stability signals official concern about both law and order and the nonappearance of potential challenges to the rule of the CPC. The slogan stability overwhelms everything (wending yadao yiqie), a formula coined by Deng Xiaoping, remains a basic tenet of party ideology. It refers to the idea that all values and goals must yield to the primary goal of maintaining stability.
Appealing to social stability is the most common justification by the government for conducting politically motivated repression against perceived dissenters or critics. It often cites the adverse consequences of news stories for social stability as a justification for censoring media reports about social unrest or punishing news outlets and journalists for reporting on them.107 The criminal charge of disrupting social order has repeatedly been used to crush any perceived dissent or opposition to the party and the state, or when citizens seek to exercise their fundamental rights and freedoms. The cover-up of public health crises (such as the SARSSevere Acute Respiratory Syndromeepidemic in 2003)108 or industrial accidents (such as the chemical spill in the Songhua river in November 2005)109have also been justified by the need to preserve social stability.
Lawyers who contravene the Guiding Opinions, causing adverse consequences, are liable to disciplinary sanctions from their lawyers association or from the judicial bureaus, as provided by the Law on Lawyers.110 The sanctions range from warnings to revocation of license.111
However, the Guiding Opinions do not define in any way what adverse consequences are, making decisions about what is permitted inherently subjective and arbitrary. Given that the preamble to the Guiding Opinions warns of varied impact on state and society, these terms imply that lawyers can be held responsible for clients protests, sit-ins, demonstrations, or other collective actions, which probably fit into the governments definition of adverse consequences on social order.
60 Guiding Opinions of the All-China Lawyers Association on Lawyers Handling Mass Cases, adopted on a trial basis on March 20, 2006, by the Standing committee of the ACLA (Guiding Opinions). [中华全国律师协会关于律师办理群体性案件指导意见, 2006年3月20日 常务理事会通过并试行.]
61 Jianfu Chen, The Development and Conception of Administrative Law in the PRC, Law in Context, 16(2), 1998, pp. 72-105.
62 Guiding Opinions, Section 1, sub-section 1. (The numbering and bulleting format of the Guiding Opinion is not consistent throughout its five sections. For the sake of clarity paragraphs numbered with Chinese numerals are referred to here as sub-sections and those numbered with Arabic numerals as points.)
63 Ibid., Section 1, sub-section 1.
64 Ibid., Preamble.
65 Ibid., Preamble.
66 Ibid., Preamble.
67 Guiding Opinions, Section IV, points 4 and 5.
68 Ibid., Section V.
69 Ibid., Section I, sub-section 3.
70 Ibid., Section II, Relations with judicial agencies.
71 See Randall Peerenboom, Lawyers in China: Obstacles to Independence and the Defense of Rights, Lawyers Committee for Human Rights, March 1998.
72 Joseph Kahn, Lawyer takes on China's 'unwinnable' cases, The New York Times, December 12, 2005.
73 Local Governments Linked to Most Serious Cases of Using the Land Illegaly, Legal Daily, June 6, 2006. [严重土地违法多与地方政府有关, 法制日报, 2006-06-06.] A survey of 15 cities carried by the ministry indicated at least 60 percent of the land developed in metropolitan areas since September 2004 had either been illegally obtained or used, while in other cases the proportion was as high as 90 per cent.
74 Guiding Opinions, Section II, Relations with government.
75 Ibid., Section II, Relations with the client.
76 Ibid, Section II. Relations with government. The Guiding Opinions leave unclear what should be considered as the relevant government departments, but they are most likely the departments that have jurisdiction over the issue at hand, such as the land management bureau in the case of a land dispute, or the tax bureau for a dispute over abusive taxation.
77 See, for example, 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.
78 See Ye Qing and Gu Yuejin, eds., Study of the Lawyers System in China (Shanghai: Shanghai Academy of Social Sciences Press, 2005). [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.]
79 Guiding Opinions, Section III, point 1.
80 Ibid., Section III, point 1.
81 Ibid., Section IV, point 7.
82 Ibid., Section I, sub-section 3.
83 Ibid., Section IV, point 3.
84 Ibid., Section IV, point 1.
85 Ibid., Section IV, point 6.
86 Ibid., Section IV, point 6.
87 Ibid., Section IV, point 3.
88 Ibid., Section III, point 3.
89 No provision is made for firms with fewer than three partners. Since joining a law firm is an absolute requirement for lawyers to practice (article 23 of the Law on Lawyers), one- or two-person firms are very uncommon. National Peoples Congress of the PRC, Law of the Peoples Republic of China on Lawyers (Revised 2001), adopted December 29, 2001, effective January 1, 2002.
90 Guiding Opinions, Section III, point 2.
91 Ibid., Section III, point 3.
92 Ibid., Section III, point 1.
93 Ibid., Section II, Relations with the client.
94 A recent study found that only three of two thousand petitioners surveyed had their problems resolved. Human Rights Watch, We Could Disappear At Any Time.
95 In recent years, the number of petitions across the country has skyrocketed, prompting the authorities to enact new regulations in 2005 that aim at containing them at the local level. Petitioners often face persecution and violence, which largely go unsanctioned by the authorities. See Human Rights Watch, We Could Disappear At Any Time.
96 See, for example, Yu Meisun, The Diary of a Peasant Advocate, China Rights Forum, No 3, 2004, pp. 61-67.
97 Guiding Opinions, Section III, point 4.
98 In Solving Mass Cases, the Role of Lawyers Cannot be Ignored, Peoples Daily Online, June 20, 2006. [处理群体事件, 律师作用不可忽视, 人民网，2006-06-20], reproduced at http://opinion.people.com.cn/GB/40604/4496965.html (accessed December 6, 2006).
99 Guiding Opinions, Section II, Relations with the media.
100 Ibid., Section II, Relations with the media.
101 For a general discussion of the relationship between the media and the legal system see Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, Columbia Law Review, 105:1, January 2005, pp. 1- 157. Liebman reports that [l]awyers also comment that maintaining good relations with the media is important, particularly when representing weak or disadvantaged clients who are in disputes with locally influential persons or individuals (p. 93).
102 A prominent example was the Tangshan case, where law activists Yu Meisun and Li Baiguang partnered with the investigative journalist Zhao Yanwho was working at the time for the liberal journal China Reformto expose the plight of relocated residents fighting for compensation. Yu Meisun has also recounted how he tried to get an influential program on Chinas Central Television (CCTV) to cover the cases of villagers involved in a land dispute. See 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.
103 Guiding Opinions, Section II, Relations with the media.
104 Lawyers Handling Mass Cases Have Regulations, Legal Daily, May 24, 2005 [律师办理群体性案件有章程, 法制日报, 2006-05-24], http://www.legaldaily.com.cn/bm/2006-05/24/content_320333.htm.
105 Guiding Opinions, Section I, sub-section 2.
106 Ibid., Preamble.
107 See, for example, China: Journalists imprisoned after reporting on land disputes, Committee to Protect Journalists, January 19, 2006; Kristin Jones, Chinas Hidden Unrest, Committee to Protect Journalists, May 2006.
108 Brad Adams (Human Rights Watch), Chinas Other Health Cover-up, commentary, The Asian Wall Street Journal, June 12, 2003, http://hrw.org/english/docs/2003/06/12/china12938.htm.
109 Beijing waited until 10 days after the incident to tell the public about a factory explosion that dumped 100 tons of benzene and other chemicals into northeastern Chinas Songhua river. Chinas PR problem, Los Angeles Times, December 13, 2005.
110 Guiding Opinions, Section 4, point 8.
111 The detailed modalities of sanctions applicable to lawyers are detailed in regulations issued by the Ministry of Justice. See Ministry of Justice, Methods for Punishing Lawyers and Law Firms Illegalities, March 19, 2004. [司法部关于律师和法律事务所违法行为处罚办法, 2004年3月19日.]