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 Chinas 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 abuseshaving authority over the local governments 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.)
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 ACLAs 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: dont 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:
The Guiding Opinions became ironically nicknamed the incantation of the golden hoopa 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 groupsfarmers and those forcibly evicted, for examplewhile 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:
Another commentator echoed the widely shared perception that the new restrictions would make lawyers irrelevant in the eyes of citizens seeking redress:
A commentator on the ACLAs forum stressed that, in many cases, the power of the national and of local governments was largely unconstrained by legality:
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.
Another lawyer expressed his disappointment in these sarcastic terms:
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:
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.
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 (Peoples 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 Xian 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:
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
Although the government prevented a public debate on the Guiding Opinions, the strong reaction of the legal community prompted the authorities to respond publicly.
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 Dailys argument reflected clearly that establishing the rule of law was not the primary goal of the Guiding Opinions:
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
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:
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
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
Appealing to present national conditionsand 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 peoples 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:
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:
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 incidentsthe occurrence of protests or crackdownsto 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.
130 Shan Shibing, In the End Should Lawyers Follow the Law or Listen to Government Departments? China Economic Times, May 18, [单士兵, 律师到底要遵从法律还是听命部门? , 中国经济时报, 2006-05-18], republished at http://law111.com/bbs/viewthread.php?tid=28 (accessed June 1, 2006).
131 Wang Lin, The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence, Oriental Morning Post, May 24, 2006 [王琳, 评论：律协的主业应是维护行业独立性, 东方早报, 2006-05-24], http://email@example.com (accessed May 26, 2006).
132 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 (accessed May 26, 2006).
133 This is the case of Sichuan law professor and legal activist Wang Yi, for instance. China Closes Dissident Blog Nominated for Award, Radio Free Asia, October 31, 2005.
134 Restrictions on nongovernmental organizations organizing conferences are often even tighter. In June 2006 the Beijing authorities quashed the attempt by lawyers and legal experts involved in the case of the blind lawyer Chen Guangcheng to organize an independent seminar on rights defenders in China. The organizer of the seminar, Han Tao, had invited two of Chens legal advisers, Teng Biao and Xu Zhiyong, as well as HIV/AIDS and rights activist Hu Jia. Security officers instructed Tao to cancel the conference, searched his home and the conference site, and placed Han under surveillance. Radio Free Asia (in Chinese), June 30, 2006.
138 See, for example, Arthur Waleys rendering of the incantation of the golden hoop in his abridged translation of Pilgrimage to the West: Tripitaka began to recite again. Monkey was soon writhing and turning somersaults. He grew purple in the face and his eyes bulged out of his head. Tripitaka, unable to bear the sight of such agony, stopped reciting, and at once Monkeys head stopped hurting. - Youve been putting a spell upon me, he said. Wu Cheng-en, Monkey, translated by Arthur Waley (London: Penguin Books, 2006 edition), p. 156.
139 Posting number 676487 by user lkhls, bulletin board of the ACLA website, http://www.acla.org.cn/forum/, May 30, 2006 (accessed June 20, 2006). Reflecting the popularity of the reference, an important article later published in defense of the Guiding Opinion in the Legal Daily used as a subtitle Its a protective film, not a golden hoop. 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 (accessed May 26, 2006).
140 Warning to Lawyers Handling Protest Suits, South China Morning Post, May 19, 2006.
141 Shan Shibing, In the End Should Lawyers Follow the Law or Listen to Government Departments? China Economic Times, [单士兵, 律师到底要遵从法律还是听命部门?, 中国经济时报].
142 Wang Lin, The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence, Oriental Morning Post, May 24, 2006 [王琳, 评论：律协的主业应是维护行业独立性, 东方早报, 2006-05-24].
144 Wang Lin, The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence, Oriental Morning Post [王琳, 评论：律协的主业应是维护行业独立性, 东方早报.]
146 Wang Lin, The Chief Task of the All-China Lawyers Association Should be to Protect Professional Independence, Oriental Morning Post [王琳, 评论：律协的主业应是维护行业独立性, 东方早报].
147 "Fifty Public Intellectuals Who Influence China," Southern Peoples Weekly, September 8, 2004 [影响中国公共知识分子50人, 南方人物周刊, 2004年9月8日。]. Zhang Sizhi has acted as defense lawyer in several of China's highest -profile cases, from the "Gang of Four" in 1980 to political dissident Wei Jingsheng in 1995.
148 The Legal Community Denounces the All-China Lawyers Association for Harming the Lawful Rights of the Masses, Ming Pao (Hong Kong), June 15, 2006. [法界斥律协戕害大众法律权利, 明报 (香港), 2006-06-15.]
149 Li Yuwen, Lawyers in China: A Flourishing Profession in a Rapidly Changing Society? China Perspectives, No. 27, January-February 2000.
150 The legal Community Denounces the All-China Lawyers Association for Harming the Lawful Rights of the Masses, Ming Pao. [法界斥律协戕害大众法律权利, 明报.]
152 Fu Dalin, Lawyers Must Ask for Instructions? website of the ACLA, April 28, 2006 [傅达林, 律师办案须请示, 中国律师网, 2006-4-28], reproduced at: http://www.cdlawyer.com/wztj/ShowArticle.asp?ArticleID=593 (accessed April 28, 2006).
153 The legal Community Denounces the All-China Lawyers Association for Harming the Lawful Rights of the Masses, Ming Pao. [法界斥律协戕害大众法律权利, 明报.]
155 Lawyers Handling Mass Cases Have Regulations, Legal Daily [律师办理群体性案件有章程, 法制日报].
157 Rights Protection Lawyers Restrained, Ming Pao (Hong Kong), May 18, 2006. [维权律师被套紧箍咒, 明报（香港）, 2006-05-18.]
160 Drafter Talks about the Guiding Opinions on Lawyers Handling Mass Cases, website of the ACLA www.acla.org.cn, May 18, 2006 [起草人谈律师办理群体性案件指导意见, 中国律师网, 2006-05-18], http://www.lawyers.org.cn/jsp/news/newsInfo.jsp?newsID=2000039725 (accessed May 20, 2006).
164 Henan Provincial Judicial Bureau, Trial Opinion on Strengthening the Supervision and Guidance for Lawyers Representation in Important and Sensitive Cases and Mass Cases, March 18, 2006 [河南司法厅关于加强对律师办理重大、敏感、群体性案件指导监督的意见, (试行) 2006-04-18], http://www.hnlawyer.org/show.aspx?id=2482 (accessed July 13, 2006).
165 Shenzhen Municipality Judicial Bureau, Provisional Regulation on Lawyers Handling Sensitive and Mass Cases, June 29, 2006 [深圳市司法局: 关于律师代理群体性敏感案(事)件管理的暂行规定2006-06-29], http://www.szlawyers.com/ShowDetail.asp?ArticleId=2346, art. 2, points 6 and 7.
166 Speech of Comrade Zheng Zhaoquan at the Work Conference on Building Shenyang Municipality Lawyers Ranks, website of the Judicial Bureau of Shenyang Municipality, April 14, 2006 [郑朝权同志在全市律师队伍建设工作会议上的讲话, 中国沈阳普法网，2006-4-14], http://www.sypf.com/fzxw/sfdt/081.htm (accessed June 30, 2006).
168 See China: Dongzhou Killings Need Independent Investigation, Human Rights Watch news release, December 15, 2005, http://www.hrw.org/english/docs/2005/12/15/china12281.htm, and China: Dongzhou Killings Must Be Investigated, Human Rights Watch news release, June 1, 2006, http://hrw.org/english/docs/2006/06/01/china13489.htm.
169 See Congressional-Executive Commission on China, Guangdong Public Security Bureau Blames Mass Incidents on Rights Defenders Activities, March 31, 2006, http://cecc.gov/pages/virtualAcad/index.phpd?showsingle=42751 (accessed June 30, 2006).
170 Luo Gan, Bolstering the teaching of the concept of socialist rule by law: Conscientiously strengthening the political thinking of the political and legal ranks, Seeking Truth, Issue No. 433, June 16, 2006 [罗干, 深入开展社会主义法治理念教育 切实加强政法队伍思想政治建设, 求是, 2006年6月16日（总433期）], http://www.qsjournal.com.cn/qs/20060616/GB/qs^433^0^1.htm (accessed October 16, 2006).