About the Issue:
An independent bar—lawyers who can do their job without harassment, detention, or fear of reprisal—is vital to ensuring the protection and promotion of human rights in China. But the work of lawyers in China is not easy, to which many Chinese lawyers can attest.
Those working to promote human rights in China, including land rights activists, religious rights activists, journalists seeking to expose rights abuses, petitioners, and others, are regularly harassed, beaten, and detained. A group of lawyers and legal advisors has emerged in China as the defenders of these human rights defenders: ensuring that detainees' rights are protected, communicating between detainees and the media, and providing a strong defense for them in court. In recent years, these defenders themselves have come under increasing attacks, including surveillance, intimidation, harassment, personal assault, and criminal charges. Chinese laws passed in recent years have also made it more difficult for lawyers to do their work. It remains to be seen whether the changes to the Lawyers Law, going into effect on June 1, 2008, will result in more independence and greater ability for lawyers to represent their clients effectively. However, because there will be conflicts between this new law and existing laws, the way in which the law is implemented may not provide greater protections.
In 2001, Liu Jingmin, a Beijing Olympic official, stated that the Olympic Games are "an opportunity to foster democracy, improve human rights and integrate China with the rest of the world." In February 2008, Human Rights in China's Incorporating Responsibility 2008: Take Action Campaign focuses on the case of Chen Guangcheng and the broader issue of the development of the rule of law—a necessary underpinning for advancing democracy and human rights. Chen Guangcheng, a blind, "barefoot" (self-taught) lawyer and activist, is serving a four year and three month prison term for "damaging public property" and "gathering people to block traffic," charges levied against him in response to his work as a legal advisor on human rights cases. On this page, you will find an overview of the situation for lawyers in China, resources for more information, and ideas on how you can take action to support lawyers in China and an independent bar!
Lawyers Working in China
Although there has been significant progress towards rebuilding a rule of law in China since the end of the Cultural Revolution, there has also been a corresponding increase in attacks on lawyers and legal advisors, particularly in recent years. In 1979, there were just 212 lawyers and 79 law offices in the entire country. Estimates in 2007 by Zhao Dacheng (赵大程), Deputy Director of the Ministry of Justice, put the figure of practicing lawyers in China at 130,000. There are also over twelve thousand law firms operating in China today.
While overall number of lawyers increases,
declining number of lawyers taking on criminal cases
Despite the swell in the number of lawyers in China, only around a third of those lawyers practice criminal law. In 2004, prominent rights defense lawyer Mo Shaoping (莫少平) estimated that less than 30 percent of criminal defendants had representation, and recent estimates suggest that number is dropping even further. This may reflect the fact that criminal lawyers face a number of impediments to providing an adequate defense: constraints on meeting with their clients, constraints on access to evidence, and in sensitive cases, lawyers themselves are sometimes harassed or intimidated.
Despite constraints, some lawyers take on rights defense work
Despite these constraints, some lawyers continue to work on sensitive criminal defense cases or work on other rights defense cases, for example, providing advice on local government corruption issues. While some estimates suggest that there are only a few lawyers actively involved in "rights-defense" cases, with one estimate as low as 20 lawyers, many more lawyers are involved in cases dealing with broader rights issues including environmental, labor and consumer protection issues. Other lawyers who represent clients in some criminal cases may not classify their work as rights-defense work, but the cases they are involved in are nonetheless politically sensitive.
Constraints on Lawyers in China
International law establishes that the rule of law is vital to the protection of human rights, and that everyone is entitled to a fair trial. Allowing lawyers to operate freely is an essential part of that system, as recognized in international norms and guidelines.
In China, however, lawyers face a number of substantive and procedural obstacles in performing their professional duties, many of which become more difficult when lawyers represent defendants in sensitive political cases. In addition, lawyers who take on rights-defense work often find themselves the subject of abuse and harassment. In the following section, an overview of constraints on criminal lawyers is provided.
Lawyers intimidated and harassed
Over the past few years, numerous cases have emerged of lawyers and legal advisors being intimidated and even beaten by the authorities or with official complicity. Rights-defense lawyers have been the target of varying levels of surveillance and harassment because of their work. Physical intimidation is used to encourage lawyers to drop cases, or to warn them against defending certain clients in criminal cases.
Groups that are seen to be organizing or causing unrest in some way are often targeted for harassment and detention by the authorities. In January 2006, the Ministry of Public Security urged the public security agencies to "Strike Hard" against social unrest. The Guangdong Public Security Bureau then issued a report blaming the unrest on "so-called rights defense." A hunger strike that began in February 2006, in which rights' activists and lawyers demanded justice for "laborers, farmers, intellectuals, free [religious] believers, who have been illegally persecuted or violently beaten," resulted in a more forceful crackdown by the authorities. Notwithstanding the peaceful nature of the protest, these lawyers and rights activists became an easy target of government repression.
In 2007, lawyers continued to be targeted for attacks. For example, on October 23, 2007, lawyer Wang Guirong (王桂荣), who had attempted to help migrant workers obtain back-pay owed to them, was attacked with knives and lost his left hand as a result. Li Heping (李和平), a Beijing-based rights-defense lawyer, was kidnapped, hooded, beaten, and tortured with electric rods by a group of unidentified men on September 29, 2007, the weekend before National Day celebrations in China. Li was held in a basement outside Beijing until early September 30, when he was dumped in the woods outside the city. As he was beaten, Li was told to leave Beijing with his family or face the consequences. When he returned home, Li discovered that his license to practice law and other personal belongings were missing. His computer had also been completely erased.
Lawyers held liable for "perjury" or "false testimony"
One major provision in criminal law that hinders lawyers' work is Article 306 of the Chinese Criminal Law. This provision, written specifically with lawyers in mind, allows prosecutors to charge lawyers with "perjury" or "false testimony." In this way, lawyers can be targeted as defendants themselves when they are accused of destroying or fabricating evidence, or of forcing or inciting a witness to change testimony. These acts are punishable by imprisonment of up to seven years.
Article 306 is written vaguely, and as a result it can be arbitrarily applied when a lawyer is providing a zealous defense in a sensitive case:
A total of approximately 500 lawyers were detained between 1997 and 2002, and more than 100 lawyers were accused specifically of violating Article 306 by fabricating evidence up to 2005. More than 90 percent of the Article 306 cases were cleared, suggesting that the provision is improperly invoked or misused by officials attempting to silence defense lawyers. Lawyers have been detained or had their licenses to practice revoked on the basis of this provision. Article 306 unnecessarily singles out lawyers, because there are other Criminal Law provisions that already prohibit the fabrication of evidence.
Obstacles in constructing a strong defense
In order to adequately defend clients in a criminal case, a lawyer must be able to meet with his or her client in private, access evidence, and investigate the facts of the case. These are precisely the abilities on which serious constraints are imposed in China. The Criminal Procedure Law imposes even stricter limitations where the cases at issue involve "state secrets" in some way.
Where a case involves state secrets, the Criminal Procedure Law requires detainees to obtain approval before a lawyer can be appointed. Further, lawyers must obtain permission from the investigating organ-often the public security authorities-to meet with their clients. The law also allows investigating organs to appoint personnel to attend meetings between lawyers and their clients during the investigation stage, thereby limiting a lawyer's ability to communicate freely with his or her client. Other constraints exist. Access to case materials can be restricted in some cases; the procuratorate can decide what constitutes "major evidence" in a case, which allows the defense access to the evidence; and lawyers can only gather evidence where parties who have that evidence—including witnesses—agree to provide it.
Procedural derogations that are permitted in state secrets cases are also in practice extended to non-state secrets cases. Numerous lawyers report having to apply to see their clients even where state secrets are not involved, for example, and in some cases the investigating organ has set conditions on lawyers when granting approval for lawyer-client meetings, including that case details cannot be discussed. Time limits have also been imposed on lawyer-client meetings, even though no such limitation is written in law.
The involvement of state secrets weighs considerably on the judicial process and the work of criminal lawyers at different levels, resulting in the procedural derogations noted above. In addition, however, because relevant laws label the details of any criminal cases currently under investigation as "state secrets," defense lawyers are vulnerable to accusations of leaking state secrets.
Greater protections in the new Lawyers Law?
In 2007, a revision to the 2001 Lawyers Law was passed, which will come into effect on June 1, 2008. The new law may strengthen some rights for lawyers, for example, to meet with their clients, etc. However, a number of questions still remain and a number of restrictive clauses are still written into the law. The revised law may provide additional protections for lawyers, but much will depend on how the provisions are implemented and how potential conflicts with other Chinese laws are resolved.
A provision in the new law also provides that lawyers cannot be subjected to legal action for opinions expressed in court. The law excludes, however, protections for lawyers' speech that threatens state security, maliciously defames others, or seriously disturbs order in the court, all categories which are subject to broad interpretation. Moreover, the provision only covers speech, such that protections do not apply to Article 306 charges, for example, of falsification of evidence.
Lawyers discouraged from taking on "sensitive" cases
A number of local regulations discourage or prevent lawyers from taking on "sensitive" cases. These regulations significantly hamper the independence of their work. For example, regulations in Shenzhen stipulate that lawyers working on "sensitive cases" must receive approval from the authorities in order to be interviewed by foreign journalists. Moreover, lawyers are required to report to the authorities on the handling of any sensitive cases they are working on, including providing the facts of the case, whether any officials are involved, and how the lawyer plans to argue the case. Where law firm partners do not agree on how to handle a sensitive case, lawyers are required to take the guidance of the local authorities to whom they report. Because of the serious punishments they may incur when failing to follow the regulations, lawyers, once again, are discouraged from taking up cases that pit the protection of citizens' rights against the interests of certain government authorities.
Overall lack of independence
A social organization which in practice answers to the Ministry of Justice, the All-China Lawyers Association (ACLA) is not yet a bar that is willing or able to effectively and independently advocate on behalf of its members. Its autonomy from the Ministry of Justice is increasing, but it is still very limited, as the Secretary-General of the ACLA is appointed by the Ministry of Justice. In 1997, the ACLA issued "Rules for the ACLA to Safeguard Lawyers' Legal Rights While Practicing Law" and one year later formally established the Commission on Safeguarding Lawyers' Lawful Rights in Practice. Despite the new enhanced power acquired by the ACLA, however, only a few cases have been reported to and dealt with by the Commission.
To a large extent, the judicial system continues to be marked by the system of guanxi, or network of relationships, as well as Party supervision at every level, making the enforcement of law vulnerable to a web of corruption and official impunity. Party Political Committees maintain tight control on the courts and the cases that can be heard. In order to carry on their work, lawyers reportedly often need to bribe officials and judges, including payment of "file retrieval fees," "service fees" and fees for referrals from judges, euphemistically called "cash cases" or "friendship cases."
The combination of laws and regulations designed to discourage zealous defense work or work on particular kinds of cases, physical intimidation, and the potential for criminal charges, has a chilling effect on the bar, limiting the numbers of lawyers willing to take on rights defense or sensitive cases and undermining the overall independence, legitimacy, and accountability of the legal system. This has implications for the general development of rule of law in China, access to justice, and the role of law in effectively and fairly adjudicating social problems.
HRIC Advocacy and Media Work on Lawyers' Rights
Below is a listing of HRIC advocacy and media work on lawyers' rights, including press release, statements, and case updates. To subscribe to HRIC's press list, please e-mail email@example.com with "SUBSCRIBE" as the subject heading.
Additional HRIC Publications
 The original Chinese reads "如果你要做法律工作，千万别当律师；如果你要当律师，千万别办刑事案件；如果你要办刑事案件，千万别取证；如果你 要取证，千万别取证人证言。如果这一切你都做不到，你就自己到看守所报到吧。" Quoted in "Lawyers Advocate for Abolishing the 'Lawyers Perjury Clause'" [律师呼吁取消“律师伪证罪” 列举三条理由], Legal Daily via Xinhuanet, June 1, 2005, http://big5.xinhuanet.com/gate/big5/news.xinhuanet.com/legal/2005-06/01/content_3029107.htm.
 Law of the People's Republic of China on Lawyers (2007 Revision) 《中华人民共和国律师法》 (2007修订), revised by the 30th Session of the 10th Standing Committee of NPC, October 28, 2007, to be enforced on June 1, 2008 (hereinafter as 2007 Lawyers Law). The Chinese text is available at: http://www.gov.cn/jrzg/2007-10/28/content_788495.htm.
 State Council of the People's Republic of China News Office, "1998 Development on Human Rights in China" [1998年中国人权事业的进展], at http://news.xinhuanet.com/zhengfu/2002-11/15/content_631275.htm.
 Cui Qingxin and Li Weiwei, "China Has 130,000 Lawyers" [我国目前执业律师达13万人], April 22, 2007, at http://www.acla.org.cn/program/article.jsp?ID=39062&CID=605850858.
 Cui Qingxin and Li Weiwei, "China Has 130,000 Lawyers" [我国目前执业律师达13万人], April 22, 2007, at http://www.acla.org.cn/program/article.jsp?ID=39062&CID=605850858.
 Cited in Zhou Maoming, "Role and Boundaries of Criminal Defense Lawyers in Participating in Criminal Cases" [今天谁出庭：律师提前介入刑事案件身份与权限], Anhui Lawyer Website, June 6, 2005, http://18.104.22.168/law/bbs/Article_Show.asp?ArticleID=414.
 Quoted in a Legal Daily report in 2004. Min Fei, "The Perils of China's Lawyers," China Rights Forum 2 (2005):35, http://hrichina.org/public/PDFs/CRF.2.2005/2.2005-BL-Perils.pdf.
 The Ministry of Justice on the opinions of further reform lawyers' work on August 4, 1992 suggested that 40% of serious criminal cases were represented by a defense attorney, see Chinese Lawyer 1992 /9. This number has dropped to 30%, Zhang Youyi, Criminal Defense Lawyers face 6 Difficulties （刑事辩护律师面临六难题）, originally from Legal Daily Weekend, available at Chinese Lawyers Website (中国律师网) http://www.acla.org.cn/pages/2008-1-7/s42547.html. An estimate by Chen Xingliang, Law Professor at Peking University, suggests that 70% of criminal cases have no defense lawyers involved. Su Nan& Jiao Yan, Pay attention to the crime of Lawyers' Falsification of Evidence -Interviewed Tian Wenchang (关注律师伪证罪———访全国律师协会刑事辩护委员会主任田文昌), available at http://www.jcrb.com/zyw/n635/ca393263.htm. Additionally, in the same article, the annual number of criminal cases in which lawyers involved dropped from 2.64 10 years ago to 0.78 in 2002 in Beijing.
 Ong Yew-kim, "A Few Questions on Weiquan Lawyers" [有关维权律师的几个问题], China Human Rights Lawyers Concern Group Website, March 27, 2007, http://www.chrlcg-hk.org/?p=113.
 The right to a fair and open trial is established in numerous international instruments: "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . . Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence," Universal Declaration of Human Rights, preamble and article 11; "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law," International Covenant on Civil and Political Rights, art. 14.
 "Public Security Bureau Demands Harsher Efforts to Crackdown down Terrorist and Criminal Acts in Order to Protect National Security" [公安部强调要严打恐怖犯罪活动维护国家安全], Xinhua News Agency, January 26, 2006, http://news.xinhuanet.com/legal/2006-01/26/content_4103005.htm.
 Congressional-Executive Commission on China, "Guangdong Public Security Bureau Blames Mass Incidents on Rights Defender Activities," http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=42751.
 HRIC Statement, "Rule of Law Threatened by Extra-Legal Attacks Against Lawyer," October 01, 2007, http://hrichina.org/public/contents/45122.
 Criminal Law of the People's Republic of China, 《中华人民共和国刑法修正案（三）》 amended by the National People's Congress on December 28, 2002, available at http://www.china.org.cn/english/government/207320.htm.
 "Lawyers Advocate for Abolishing Article 306 of the Criminal Law" [律师界吁撤刑辩「紧箍咒」], Takung Pao, March 15, 2007.
 Wang Yi, "Human Rights Lawyers and the Rule-of-Law Camp," China Rights Forum 3 (2006): 21, http://hrichina.org/public/PDFs/CRF.3.2006/CRF-2006-3_Rule-of-Law.pdf.
 Bill Savadove, "Justice Remains Shanghaied in City's Law Courts; Intimidation and Physical Violence Against Lawyers Is on the Rise, and Getting a Fair Trial is Still Far from Guaranteed," South China Morning Post, February 7, 2006.
 "Chinese Article Claims That Research on the Difficulties Faced by Criminal Defense Lawyers Restricted After Revealing "Shocking" Initial Results," Congressional-Executive Commission on China Website, January 13, 2005, http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=5472.
 The 1996 Criminal Procedure Law provided more rights to lawyers, and to balance this out, parties that opposed that expansion of rights suggested including Article 38 in the CPL. This article provided that lawyers who interfere with the proceedings of the judicial organs will be held legally responsible. Article 306 was then added to the Criminal Law to complement this provision.
 The state secrets legal system is complex and opaque, sweeping a vast universe of information into its net. All Chinese citizens are obligated to protect state secrets, and individuals can be criminally charged for stealing, possessing, or leaking state secrets. Because almost anything can be classified as a state secret, or retroactively classified, individuals have been charged for "leaking" a broad range of information, including information that was published in newspapers. For more information on the State Secrets system, see, Human Rights in China, State Secrets: China's Legal Labyrinth, June 12, 2007, http://hrichina.org/public/contents/41421.
 Standing Committee of the National People's Congress, Criminal Procedure Law of the People's Republic of China (1996 Amendment) 《中华人民共和国刑事诉讼法》(1996修正), adopted on July 7, 1979, revised on March 17, 1996, Art. 96. (Hereinafter Criminal Procedure Law) Available at: http://www.china.org.cn/english/government/207334.htm.
 Criminal Procedure Law, Art. 96.
 Criminal Procedure Law, Art. 42.
 Supreme People's Court, Interpretation of Certain Issues Regarding the Implementing the Criminal Procedure Law of the People's Republic of China 《最高人民法院关于执行〈中华人民共和国刑事诉讼法〉若干问题的解释》, promulgated on June 29, 1998, enforced since September 8, 1998. The Chinese text is available at: http://news.xinhuanet.com/st/2001-11/30/content_140921.htm.
 Criminal Procedure Law, Art. 37; Standing Committee of the National People's Congress, Lawyers Law of the People's Republic of China 《中华人民共和国律师法(2001修正)》, adopted on May 15, 1996, amended on December 29, 2001, Art 31. Available at: http://law.chinalawinfo.com/newlaw2002/SLC/SLC.asp?Db=chl&Gid=38085. The law was revised on October 28, 2007.
 Lü Liangbiao, "Difficulties of Lawyer-Client Meetings And the Way Out" [律师“会见难”及其破解], Chinese Lawyer 1 (2006): 35.
 Law on the Protection of State Secrets of the People's Republic of China 《中华人民共和国保守国家秘密法》 (Article 8, Item 6); 1995 notice issued by the Ministry of Public Security and the National Administration for the Protection of State Secrets, entitled Regulation on State Secrets and the Scope of Each Level of Classification in Public Security Work 《公安部、国家保密局关于印发《公安工作中国家秘密及其密级具体范围的规定》的通知》 (Articles 2(3)-8)).
 2007 Lawyers Law, Chinese text available at: http://www.gov.cn/jrzg/2007-10/28/content_788495.htm.
 Criminal Procedure Law, Art. 96; Provisions Concerning Several Issues in the Implementation of the Criminal Procedure Law, issued on 19 January 1998 by Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of Justice and the NPC Standing Committee Legal Affairs Working Committee ("Implementation Provisions").
 2007 Lawyers Law, Art. 33.
 Art. 11 of the Implementation Provisions of the Criminal Procedure Law, "According to Art. 96 . . . lawyers shall get the approval from the interrogation organs in the state secrets cases. Lawyers may meet their clients without any approval in the non-state secret cases. The interrogation organs can not refuse the approval for the excuse of need to keep secret in the interrogation period. When lawyers request to meet their clients, the arrangement shall be made within 48 hours. For the important and complicated cases in which more than two people involved like organized, led, joined the underworld gangs and others, the arrangement shall be made within five days."
 2007 Lawyers Law, Art. 37.
 See, e.g., Nantong City Bureau of Justice, "Opinion on Further Strengthening the Guidance of Lawyers Handling Major Cases," February 18, 2004, available at: http://www.ntda.gov.cn/wjzxqw/W2580001035.htm; Guangdong Municipal Bureau of Justice and the Guangdong Lawyers Association, "Guiding Supervisory Notice on Strengthening Lawyers' Work in Handling Major Sensitive and Collective Cases," September 10, 2004, available at: http://www1.gdetime.com.cn/article/viewArticle.php?id=355; Henan Provincial Bureau of Justice, "Guiding Supervisory Opinion on Strengthening Lawyers' Work in Handling Major Sensitive and Collective Cases," April 10, 2006, available at: http://www.hnlawyer.org/show.aspx?id=2485; Shenzhen Municipal Bureau of Justice, "Provisional Regulation on Lawyers' Work in Handling Sensitive and Collective Cases." June 29, 2006, available at: http://www.szlawyers.com/ShowDetail.asp?ArticleId=2346.
 Shenzhen Municipal Bureau of Justice, "Provisional Regulation on Lawyers' Work in Handling Sensitive and Collective Cases." June 29, 2006, art.6.
 Shenzhen Municipal Bureau of Justice, "Provisional Regulation on Lawyers' Work in Handling Sensitive and Collective Cases." June 29, 2006, art. 5.
 Shenzhen Municipal Bureau of Justice, "Provisional Regulation on Lawyers' Work in Handling Sensitive and Collective Cases." June 29, 2006, art. 3.
 Wang Chunbo, "An Analysis of the Current Risks in the Legal Profession" [律师执业风险现况的分析], Qiushi 11 (2004): 82-83.
 The All-China Lawyers Association's "Guiding Opinion on Lawyers Handling Collective Cases," approved by the Executive Council of the All China Lawyers Association on March 20, 2006. Available at: http://www.chineselawyer.com.cn/pages/2006-5-15/s34852.html.
 Cho Young Nam, "Symbiotic Neighbor or Extra-Court Judge? The Supervision over Courts by Chinese Local People's Congresses," The China Quarterly 176 (2003): 1068-1083; William P. Alford, "Tasseled Loafers for Barefoot Lawyers: Transformation and Tension in the World of Chinese Legal Workers," China Quarterly 141 (1995): 22-38.
 Wang Chenguang and Gao Qicai, "A Survey on the Current State of the Legal Profession: A Summary of Interviews from Wuhan" [律师执业的现状调查：武汉律师访谈综述], Zhongguo Lushi (December 2000): 5-13.
 Cai, op.cit.
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