X. Recommendations

To the Chinese government

a. Release and reinstate lawyers illegitimately sanctioned

  • Immediately release all lawyers arrested, detained, or under house arrest as a result of their legitimate professional activities on behalf of controversial clients or causes. 

  • Reinstate the professional licenses of lawyers who have been suspended or whose registration has been denied for political reasons.

  • b. Improve access to justice and sanction official arbitrariness

  • Repeal local or administrative rules and regulations and prohibit the enactment of new rules and regulations that impose additional limitations on the rights of lawyers beyond those defined in national law or regulations. 

  • Ensure access to justice for victims of abuses of power by upholding existing laws and prosecuting officials who obstruct the course of justice. 

  • Remove obstructions—including embedded Party and administrative interference—that prevent lawyers from effectively and vigorously representing criminal defendants and other clients in contentious cases, including those alleging official abuse.

  • Provide for more effective and automatic administrative sanctions for judicial officials who arbitrarily deny attorneys’ registration and Public Security Bureau officials who block access to justice. 

  • c. Grant the legal profession independence

  • Ensure that bar associations are fully independent and self-governing so that they can adequately represent the interests of the legal profession and actively defend lawyers facing illegitimate official sanctions. Abolish statutes stipulating that judicial bureaus exercise “supervision and guidance” of bar associations. 

  • Allow for free elections of the executive bodies of bar associations at the local and national level and ensure that they exercise their functions without external interference.

  • Remove all restrictions preventing lawyers from talking to the media, consistent with China’s constitutional free expression guarantee, with only narrowly tailored exceptions necessary to protect the integrity of judicial processes.

  • Ensure that arbitrary restrictions are not placed on the press in the coverage of cases, including restrictions stemming from political considerations or aimed at preventing official embarrassment.

  • d. Revise key laws and regulations

    Annual renewal of registration of professional licenses

  • Revise the Ministry of Justice’s “Methods for the Management of Lawyers Professional Licenses [律师执业证管理办法 ]” and similar local regulations to ensure that lawyers’ annual registration is not subject to political considerations or other arbitrary factors. No lawyer should be denied renewal of registration on the basis of the cases he has represented or is representing. If registration is denied, the grounds on which the decision was made should be communicated in writing, and the decision subject to appeal to an independent appellate body.

  • Restrictions on collective cases

  • Repeal the “Guiding Opinions on Lawyers Handling Mass Cases [中华全国律师协会关于律师办理群体性案件指导意见]” and similar local regulations that interfere with the ability of lawyers to represent the interests of their clients in collective cases. There should be no limitation on the type and nature of cases lawyers are entitled to represent, nor on the number of plaintiffs involved. Lawyers who accept collective cases should not be forced to seek instructions or permission from the Ministry of Justice.

  • Revisions to the Criminal Procedure Law

  • Repeal article 306 of the Criminal Procedure Law that allows for the prosecution of lawyers who counsel clients to retract inaccurate depositions or forced confessions.

  • To improve lawyers’ access to criminal suspects in custody, bring article 96 of the Criminal Procedure Law into agreement with provisions of the revisedLaw on Lawyers  before the latter goes into effect on June 1, 2008. In particular, repeal the provisions stating that a meeting request can be denied for “cases involving state secrets” and that “personnel from the investigating organ… [may] be present” during the meeting between a lawyer and his client.

  • Ensure that revisions to theCriminal Procedure Law are consistent with international standards for the administration of justice and the protection of criminal defendants’ human rights. Such revisions should be made through a transparent and consultative process, with a public timetable of hearings and sessions, and sufficient time for a proper debate in the legislative assembly. A strong basis for the necessary revisions can be found in:

    Tian Wenchang, Chen Ruihua, eds., Draft Recommendations and Considerations by the Legal Profession on the Revisions to the Criminal Procedure Law of the PRC (Beijing: Law Press China, 2007). [田文昌、陈瑞华(主编),中华人民共和国刑事诉讼法在修改-律师建议稿于论证, (北京:法律出版社, 2007).]

    Bian Jianlin, ed., The Quest for China's Criminal Justice Reform - Taking for Reference the Norms of the United Nation on Criminal Justice (Bejing: Chinese People's Public Security University Press, 2007). [卞建林(著编),中国刑事司法改革探索-以联合国刑事司法准则为参照 (北京:中国人民公安大学出版社, 2007).]

  • Revise provisions of the Criminal Procedure Law to ensure that lawyers get access to all evidence as soon as it is sent to court, and that they are given adequate time to examine, investigate, and prepare evidence and witnesses before court proceedings commence.

  • Revise theCriminal Procedure Law to exclude evidence obtained from torture so as to enforce the prohibition of torture and forced confessions.

  • e. Ensure effective protection of lawyers

  • Ensure the effective protection of lawyers carrying out their functions, in part by reiterating China’s commitment to the Basic Principles on the Role of Lawyers, to which China is a signatory, particularly:

  • Principle 16

    Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

    Principle 23

    Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

    Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.

    f. Invite the United Nations special rapporteur on the independence of lawyers and judges

  • Issue an unconditional invitation to the United Nations special rapporteur on the independence of lawyers and judges to visit China, and allow the rapporteur full access in compliance with the terms of reference for United Nations rapporteurs.

  • To members of the international law community

    Including governments and international organizations funding legal aid programs, law schools running legal cooperation initiatives and international law firms with a presence in China

    Human Rights Watch believes that international legal exchange and support programs that focus on legal practitioners are making a positive contribution to legal reform in China. Such programs should be strengthened and greater resources should focus on protection for the legal profession and access to justice.

    To support lifting the restrictions on lawyers identified in this report that unnecessarily held in check the internal dynamic of legal reform, the international law community should:

    a. Ensure effective protection of its local partners

  • Privately and publicly express concern when the Chinese partners with whom they work face abuse or interference.

  • Press central government authorities to ensure that national laws protecting the practice of law, including lawyers’ vigorous defense of controversial clients and causes, are applied locally.

  • Regularly convey concerns shared by Chinese legal aid institutions to the Chinese authorities, in particular when legal activists are at risk. 

  • b. Focus on practices rather than exclusively on norms

  • Identify modest adjustments to existing routines and institutions that can substantially improve the ability of lawyers to exercise their rights and lower human rights abuses.

  • Encourage and finance empirical studies on obstacles faced by legal practitioners.

  • Support programs that empirically measure key variables and basic operations of criminal defense lawyers.

  • c. Promote judicial independence as the cornerstone of legal reform

  • Emphasize to Chinese officials the importance of an independent legal sector in resolving public disputes and mediating social unrest.

  • Promote the independence of judges, lawyers, and legal professionals.

  • Offer assistance on how to structure an independent lawyers association and provide comparative expertise on how other countries manage relationships between judicial branches and lawyers.  

  • d. Promote public interest law

  • Promote the development of pro bono law practice.

  • Support legal aid to underrepresented groups in the legal process.

  • Open grant-making programs to the public so as to generate a more diversified pool of domestic partners across the country. 

  • Ensure a balance between academic, official, and non-governmental partners in legal aid programs.

  • e. Ensure greater coordination in legal assistance to China

  • Ensure greater coordination between legal aid programs.

  • Ensure a balance between academic, official, and non-governmental partners in legal aid programs.

  • f. Provide balanced assessments of the performance of China’s legal system based on international standards

  • Include in periodic activity reports from legal aid programs comprehensive updates on the performance of China’s legal system, including the extent to which it is making progress in meeting international standards for the administration of justice.

  • To foreign governments and the United Nations

  • Press the Chinese government to invite the UN special rapporteur on the independence of lawyers and judges to visit.

  • Press the Chinese government to report on the implementation of the recommendations made by the special rapporteur on torture after his visit to China.

  • Press the Chinese government to ratify as soon as possible the International Covenant on Civil and Political Rights (ICCPR), which recognizes the right to counsel, the principle of equality before the courts, and the right to a fair and public hearing by an independent court established by law.