Lawyers in China: Obstacles to Independence and the Defense of Rights

CIAO DATE: 1/99

April 1998

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Introduction

Like much else in China today, the Chinese legal profession is in a state of rapid transformation. Extensive reforms to the country's legal system, designed to help modernize China's economy and knit the country more closely into the international community, coexist uneasily with serious and systematic human rights violations. The criminal justice system continues to be rife with torture, arbitrary detention and denials of due process. These violations and others have been documented in great detail by international human rights organizations such as Amnesty International, Human Rights Watch and Human Rights in China, as well as by intergovernmental bodies and national governments.

In addition to exposing these violations and seeking redress for their victims, the Lawyers Committee believes that it is essential to bring Chinese law and practice into full conformity with international human rights standards and thereby to build lasting structural guarantees for the protection of human rights. The process by which this is accomplished cannot be dictated by outsiders; the main impetus for legal reform and social change must come from within. Yet there is a great deal that those outside China can do, if they have a solid grasp of both the extent of human rights violations in China and the legal context in which these occur. We believe that effective engagement by outsiders requires detailed, reliable information and analysis about key developments in Chinese law, especially those areas of law in which officially sanctioned change—willingly or unwillingly—forces questions of rights closer to the surface. Since 1993 the Lawyers Committee has published a series of reports on legal reform and human rights in China.

Lawyers in China deals with the changes that are underway in the Chinese legal profession, including the passage of a new Lawyers Law in May 1996. It asks whether these changes will allow Chinese lawyers to act as protagonists of reform and defenders of rights. For now, that potential remains largely latent. However, the Chinese legal profession is changing rapidly. In 1981 China had just 5500 lawyers; today it has more than 110,000; and it is on course to reach a goal of 150,000 by the end of the century. China held its first national bar examination in 1986; a decade later, 127,000 people took the exam in a single year.

With this growth in numbers has come a change in role, as lawyers represent clients in an increasing volume of administrative, civil and criminal cases. The impact of legal changes, especially in the realm of criminal justice, will be to increase the scope for lawyers to act as advocates of statutory rights that have only recently been formally recognized. Such rights remain tightly circumscribed, and the changes that have been introduced—for example, in the Criminal Procedure Law—fall far short of international norms. Even so, they introduce a dynamic that breaks sharply from past Chinese practice. Public perceptions of the function of law and litigation, and the ability of the social actors involved to represent their rights and interests, have already begun to change. How much this incipient rights consciousness can be fostered, and how much it can be translated into rights advocacy and further rights-oriented structural change, is an open question—but one of the greatest importance to those outside China seeking to combat the alarming levels of serious human rights violations.

The new Lawyers Law, which replaces the 1980 Provisional Regulations on Lawyers, ₁ reflects the changes in China's political, economic and legal environment over the preceding decade and a half. The law offers a new framework to enable lawyers to serve their clients more effectively and represent the rights and interests of individuals. If the Chinese authorities allow the new law to be fully implemented, it will constitute an important step in China's efforts to develop a more professional and independent legal profession.

As this report notes, a number of aspects of the current situation give grounds for optimism. First, the rapid growth of the legal profession is not only quantitative but qualitative. As a result of the expansion of legal education and exposure to international commerce, Chinese lawyers have become increasingly sophisticated and specialized in their practice. In recent years they have also begun to devote greater attention to issues of professional ethics, responsibility and accountability, and have taken part in campaigns to educate the population about the content of their newly acquired rights. Second, the Chinese government is evidently committed to the continued growth of the legal profession and to broadening the responsibilities of lawyers. Third, lawyers enjoy increasing financial and administrative independence vis-à-vis the state, which previously saw them as its servants.

At the same time, this report shows that many serious problems still remain. The overarching question is the degree to which the law—and therefore lawyers—really matters in China today. Although the Maoist concept of the law as an instrument of class struggle no longer holds sway, law is still seen as an instrument for advancing the strategic interests of the state. President Jiang Zemin has recently elevated the concept of "ruling according to law" to the level of one of the Communist Party's "guiding principles" for managing state and society. But there is a gulf between this conception of the law and the notion of the rule of law as a means of guaranteeing individual rights and governmental accountability.

A second fundamental consideration is whether lawyers are free to exercise their professional responsibilities without fear of abuse or retribution. Given the tight controls on the Chinese press, the lack of an independent bar, and the sensitivity of the subject, hard data on this point is limited. But surveys published in China citing consistent patterns of interference with lawyers by state agents, and anecdotal evidence in press reports of physical attacks on lawyers by police, court officers and private parties, suggest that problems are widespread.

There is no doubt that Chinese lawyers seeking to assert the rights of clients aggressively in situations where local power structures are challenged or state interests are at stake risk interference or worse. Lawyers face pressure not to take on sensitive cases and have suffered reprisals for doing so. A number of lawyers involved in the defense of political dissidents in the wake of the 1989 suppression of the democracy movement faced serious harassment, ranging from heavy-handed "guidance" by judicial authorities to more serious interference with their ability to present an effective defense. Ji Suwan and Gao Xiaofeng of the Beijing Municipal Qingshan Legal Office, who represented Chen Ziming—accused of being one of the "black hands" behind the 1989 democracy movement—were punished by the temporary suspension of their professional license to practice. Zhang Sizhi of the Beijing No. 5 Legal Affairs Office, who acted as defense counsel for another of the "black hands," Wang Juntao, as well as for senior Communist Party aide Bao Tong, was repeatedly harassed and warned of possible disciplinary action. In 1992, after protesting the detention of her husband for alleged membership in an illegal human rights organization, Shanghai lawyer Li Gouping had her license revoked and confiscated. ₂

Legal scholars who have advocated a more rapid pace of legal refrom than that favored by the authorities have also suffered harassment. The most notable of these is Professor Yu Haocheng, former director of the China Legal System and Social Development Research Institute. Professor Yu was denied permission on several occasions to travel to academic conferences outside China, and was threatened with additional punishment if he allowed further publication of his views abroad.

This report also describes some of the other serious obstacles that remain. Many of these reflect the transitional character of the Chinese legal system as a whole, and will only be resolved when larger political questions of state control are addressed. Lawyers have acquired greater independence from the state in the sense that they are free to make money, but in other respects their independence is severely limited. Bar associations remain weak, and are largely controlled by the Ministry of Justice (MOJ) ₃ Indeed, in some important respects, these controls are actually increased by the Lawyers Law. The Chinese legal profession is still at an early stage of its development, and much work still needs to be done to build strong professional and ethical standards. Especially in the criminal context, and even after reforms to the Criminal Procedure Law, the ability of lawyers to represent their clients effectively is still limited by law. Substantial barriers exist blocking access to legal services. And as lawyers try to exercise some measure of independence they face resistance from other parts of the legal machinery, including judges and prosecutors, as well as overt pressures from the Chinese Communist Party (CCP) and local vested interests.

As this report asserts, the development of the legal profession is an important bellwether of the direction that China's "half-reformed" legal system is taking as a whole. More than this, the development of the profession can itself serve as an impetus to broader reforms. Some of China's recent legal reforms, particularly to the criminal justice system, depend critically on the ability of lawyers to play an expanded—if still circumscribed—role in effectively representing individual rights and interests. To the extent that lawyers are able to do this, they will help realize the modestly progressive aims of the Criminal Procedure Law and other reforms.

The potential exists, in other words, to strengthen the trend toward a more pluralistic legal system, one that is oriented toward the rights of the individual client rather than the interests of the state. If this dynamic prospers, ordinary Chinese citizens are more likely to see the concrete benefits of the reform trend and lend it their active support; lawyers themselves will seek a greater expansion of their role and press for the further reforms required to accomplish this; and even state actors, including the police and prosecutors, may come to appreciate the value of the lawyer's role. A number of powerful forces are already propelling these developments. These include an increasingly marketized economy that values legal services, a growing rights consciousness, administrative reform and institutional development, and the increased awareness in China of foreign legal models, both national and international.

Other forces, also powerful, continue to retard change, and many arduous battles remain ahead. Most of these must be waged by people within China. But outside support and encouragement will be a crucial asset to those engaged in this work. Even without the broad political changes that will eventually be needed to ensure a truly effective and independent legal profession, there are many ways in which the role and independence of Chinese lawyers can be further strengthened to equip them better for the challenges that lie ahead.

The present weakness of the Chinese legal profession can be overcome through improvements in legal education, professional training and law firm management, the promotion of an enhanced sense of professional ethics, and encouragement of the growth of bar associations.
Legal restrictions on the role and independence of lawyers can be contested through tough and consistent pressure on the Chinese government to abide by international standards. This pressure can take advantage of China's growing willingness to accede to the international human rights treaty regime, including most recently its March 1998 announcement that it would sign and ratify the International Covenant on Civil and Political Rights (ICCPR). Chinese lawyers and government officials need to be educated in these international norms and in other relevant foreign experience that illuminates key procedural aspects of lawyers' work, such as access to detainees, confidentiality of communications with clients and powers of discovery.
Barriers to accessing legal services can be challenged by the expansion of legal aid.
Resistance to lawyers from others involved in the administration of justice in China will need to be broken down through sustained educational efforts stressing the need for a commonly understood set of legal values and the complementary roles in a rights-based legal system of lawyers, police, prosecutors, judges and others. These efforts must be accompanied by systematic monitoring and critiquing of abuses of lawyers by other parts of the machinery of justice.

As the conclusions and recommendations to this report suggest, there are many concrete ways in which those outside China can help Chinese lawyers in each of these areas as they struggle to establish a rights-based legal system. The first step in building this external support is to develop knowledge of and contact with the Chinese legal profession, and to build a sound base of knowledge about their situation, needs and desires. This report is intended to stimulate and inform that effort.

Chapter I of the report situates the Chinese legal profession in the broader context of the country's legal system and the role of courts, judges and lawyers in contemporary China. Chapter II places the Lawyers Law within the historical context, discussing briefly the legal profession in pre-socialist China, in socialist China from 1949 to the passage of the Provisional Regulations in 1980, and then in somewhat greater detail during the reform period from 1980 to the passage of the Lawyers Law. Chapter III provides an overview of the Lawyers Law, including a discussion of the legislative history. Chapter IV examines the impact of the law on the protection of individual rights and interests, noting that the new law should aid in such efforts by: (i) fostering a more independent legal profession by redefining the nature and role of lawyers, promoting the independence of law firms, and creating a dual management system with duties to be shared over time between the MOJ and China's bar associations; (ii) improving the quality of lawyers by raising the standards to qualify and practice, emphasizing professional ethics, and enhancing lawyers' discipline and legal liability; (iii) clarifying the rights and obligations of lawyers; (iv) advocating better protection of the rights of lawyers in carrying out their duties; and (v) laying the foundations of a legal aid system.

In analyzing the Lawyers Law, the report examines the extent to which the new law complies with international human rights law standards. The most detailed exposition of the right to counsel, and of the rights and responsibilities of lawyers, is found in the United Nations Basic Principles on the Role of Lawyers, which were considered by the drafters of the Lawyers Law along with various other foreign legal materials. ₄ The Basic Principles were formulated to assist states in promoting and ensuring the proper role of lawyers within the framework of their national legislation and practice. The Basic Principles are an important international benchmark against which the legal professions of both civil and common law countries may be measured.

Finally, Chapter V concludes with a review of continuing impediments to the development of a qualified and independent legal profession in China and sets out a number of policy recommendations as to what foreign governments, academics, bar associations, lawyers, non- governmental organizations and human rights groups can do to help overcome these impediments.

The author of this report is Randall Peerenboom, a senior associate with the British law firm Freshfields. Freshfields is one of the largest international law firms in the world, with 186 partners, more than 750 other lawyers and a total staff of 1700 worldwide. Its China Practice group is the firm's largest regional specialist group, with almost 50 lawyers in China and Hong Kong. Mr. Peerenboom has been practicing in Beijing for the last four years. As of fall 1998, he will be Acting Professor of Law at the University of California at Los Angeles, where he will teach courses in Chinese law. We thank Freshfields for its generous support of this project. However, the views expressed in this report are those of the author and the Lawyers Committee for Human Rights.

Endnotes

Note 1: Lawyers Law of the People's Republic of China, adopted May 15, 1996, effective January 1, 1997 [hereinafter Lawyers Law]; Provisional Regulations of the People's Republic of China on Lawyers, adopted August 26, 1980, effective January 1, 1982 [hereinafter Provisional Regulations]. A translation of the Lawyers Law is at Appendix I. Back.

Note 2: Criminal Justice with Chinese Characteristics (Lawyers Committee for Human Rights, New York: 1993) [hereinafter Chinese Characteristics], at 47-51. Back.

Note 3: 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. Back.

Note 4: Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, held in Havana, Cuba, August-September 1990, and welcomed by the 45th General Assembly of the United Nations in resolution 45/121, adopted December 14, 1990 [hereinafter Basic Principles]. The complete text is at Appendix II. Author's communication with drafters of the Lawyers Law from the Ministry of Justice. Back.