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V. The New Guiding Opinions

After a lawyer has accepted a mass case, he must… promptly report the situation to the relevant government departments.

—Section II of the Guiding Opinions

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

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 Watch’s related concerns.

A. Tightening of control by the judicial bureaus and other governmental departments

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 party’s 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.

B. Requiring lawyers to share confidential information with the authorities

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

C. Strengthening of controls exercised by the lawyers associations

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 party’s 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

D. Introduction of specific requirements for accepting cases

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 responsibility—and therefore the consequences—of 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.

E. Greater restrictions on working with petitioners

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 People’s Daily exemplified, “not one person petitioned.”

The chief factor was that lawyers were involved early in the demolition and relocation process and assisted the government departments in reaching settlements. This is an example of lawyers participating successfully in the resolution of a mass case.⁹⁸

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.

F. Discouraging contacts with media and foreign organizations

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.

G. Requiring lawyers to take cases based on their possible effect on “stability”

The Guiding Opinions state that “lawyers must … safeguard the country’s stability”¹⁰⁵ 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 SARS—“Severe Acute Respiratory Syndrome”—epidemic 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.”

H. Intimidating sanctions

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 government’s definition of “adverse consequences” on social order.

Lawyers trying to publicize mass cases through the media are liable to sanctions.