"Walking on Thin Ice"

Control, Intimidation and Harassment of Lawyers in China

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I. Summary

The rule of law is important for the promotion, realizationand safeguarding of a harmonious society. This principle should be rigorouslyimplemented in all political, administrative and judicial sectors to ensure thepowerful be checked and accountable for their misdeeds.

-Hu Jintao, June 26, 2005[1]

You cannot be a rights lawyer in this country withoutbecoming a rights case yourself.

-Lawyer Gao Zhisheng, December 2005[2]

The development of a strong, independent legal profession inChinais critical to the promotion and protection of human rights. Lawyers serve acritical function in the administration of justice, a point recognized by China's top leaders themselves,[3] as well as thelarge international legal reform community working in China.

Over the past two decades, the Chinese Communist Party (CCP)has progressively embraced the rule of law as a key part of its agenda toreform the way the country is governed. Importing entire pieces ofWestern-style legal institutions, the CCP is in the process of establishing amodern court system, has enacted thousands of laws and regulations, and hasestablished hundreds of law schools to train legal professionals. It haspublicized through constant propaganda campaigns the idea that common citizenshave basic rights, elevated the concept of the "rule of law" to constitutionalstatus, and recognized the validity of human rights norms with a newconstitutional clause stipulating that "the state respects and protect humanrights."

Yet, Chinese lawyers continue to face huge obstacles indefending citizens whose rights have been violated and ordinary criminalsuspects. This report shows that lawyers often face violence, intimidation,threats, surveillance, harassment, arbitrary detention, prosecution, and suspensionor disbarment from practicing law for pursuing their profession. This isparticularly true in politically sensitive cases. Lawyers are often unable toseek redress for these threats and attacks as law enforcement authoritiesrefuse to investigate abuses, creating a climate of lack of accountability foractions against members of the legal profession.

Instances of abuse by the national government or localauthorities against lawyers have disproportionately affected lawyers who arepart of theweiquan, or "rightsprotection" movement, a small but influential movement of lawyers, law experts,and activists who try to assert the constitutional and civil rights of thecitizenry through litigation and legal activism.Weiquan lawyers represent cases implicating many of the mostserious human rights issues that beset China today: farmers whose land has beenseized by local officials, urban residents who have been forcibly evicted,residents resettled from dam and reservoir areas, victims of state agents' orcorrupt officials' abuses of power, victims of torture and ill-treatment,criminal defendants, victims of miscarriage of justice, workers trying torecoup unpaid wages and rural migrants who are denied access to education andhealthcare.

As one lawyer told Human Rights Watch:

All lawyers in China face the same constraints.What makesweiquan lawyers special isthat they try to break free from these constraints, and they pay the price forit.[4]

There are also many structural reasons for the vulnerabilityof lawyers and the weak status of the legal profession. First and foremost isthat lawyers and the entire legal system operate within a one-party politicalsystem. The legal profession in China,like the judiciary, is still far from attaining either formal or functionalindependence. More specific but related reasons most often cited by Chinese andforeign scholars are that legal reform is relatively recent, beginning only twoyears after the end of the Cultural Revolution, in 1978; the even more recentemancipation in 1996 of the legal profession from the Ministry of Justice, whenthe first Law on Lawyers was promulgated; the fact that bar associations remainunder the control of the judicial authorities, which in turn remain under thecontrol and supervision of Communist Party organs; and that the ability ofcitizens to challenge or sue the government is a very recent development (laws allowing administrative litigation and statecompensation date only from 1989 and 1994, respectively).

Lawyers routinely identify lack of independence from thegovernment as the key structural challenge facing their profession. As acomprehensive study on lawyers published in 2005 by the Shanghai Academy ofSocial Sciences Press points out, "The core question in the reform of the legalprofession is the self-governance of the profession. Lawyers shouldindependently carry out their professional duties and not be subjected tointerference from state organs, groups or individuals."[5]

Even the objectives and functions of legal aid structuresremain closely directed by the judicial authorities. In one typical speech inOctober 2007, the vice-minister of justice in charge of the administration oflawyers called on the judicial bureaus to "strengthen the direction of legalservice employees and legal aid workers" to implement the objectives set by Partyleaders,[6] reaffirming that"the key point in the work of lawyers is their role in contributing to thestability of a harmonious society,"and that lawyers"must support the leadership of the Party at all times."[7]

For all these reasons, lawyers are reluctant to work onpolitically sensitive cases, in particular human rights cases. Lawyers facepowerful incentives to avoid work that is perceived by the CCP and governmentauthorities as a threat or as a potential source of embarrassment, includingwork on cases seeking redress for abuses of power or wrongdoings committed bystate or Party authorities. The result is not only abuse of lawyers, bothphysically and professionally, but a setback for the rule of law and theadministration of justice. It also contributes to continuing public unrest asthose with political or economic power, both inside and outside the CCP, trampleon the rights of average citizens.

China'stop leaders now routinely state their commitment to the rule of law.In his report to the 17thParty Congress in October 2007, President Hu Jintao stressed that "therule of law constitutes the essential requirement of socialist democracy," andpledged to "respect and safeguard human rights, and ensure the equal right toparticipation and development for all members of society in accordance with thelaw."[8]

In a one-party system intent on keeping its hold onpolitical power–and in the absence of other independent checks on power such asa free press or an autonomous civil society–this formidable effort atestablishing the rule of law is aimed at providing stability and predictabilityto a rapidly modernizing society, supporting economic development, and impartinglegitimacy to the Communist Party and government. Party and governmentofficials have repeatedly stressed the need to develop the legal profession aspart of their stated commitment to rule of law, and extolled the role thatlawyers can play in the resolution of social contradictions to serve theoverall political goal set by Hu Jintao of constructing a "harmonious society."[9]

Therehave also been benefits for ordinary Chinese. Lawyers are playing a greaterrole than ever in resolving ordinary disputes and representing victims of humanrights abuses. They have helped gain recognition of grievances, promoted legalawareness among victims of abuses, advanced consumer rights, provided legal aidand counsel in both judicial and non-judicial settings, fostered bettercompliance with statutory requirements from law enforcement agencies andcourts, and monitored the enforcement of judicial decisions.

If China'slegal reform is to reach the next level, however, authorities need to act muchmore decisively to remove the obstacles that continue to prevent lawyers fromplaying their proper role. Lawyers' exercise of their profession-includingtheir vigorous defense of controversial clients and causes-requires increasedprofessional autonomy and protection against arbitrary interference by otherjudicial system actors, particularly though not exclusively in politicallysensitive cases. As this report demonstrates, China still has a long way to go tolift arbitrary restrictions on lawyers and establish genuine rule of law.

Key recommendations

Human Rights Watch urges the Chinese government to addressthe plight of lawyers and the legal profession by:

·Immediately releasing all lawyers arrested,detained, or under supervision as a result of their professional activities,including as human rights defenders;

·Ending all officially sponsored attacks onlawyers and holding the perpetrators of such attacks accountable under the law;

·Making lawyers associations fully independent, insulatedfrom interference by Party officials, security officials, and the Ministry ofJustice;

·Repealing aspects of annual bar registration forlawyers which allow judicial system authorities to put pressure on andarbitrarily retaliate against lawyers for political and other reasons;

·Revising key laws and regulations governing thelegal profession to bring them into accordance with international standards;

·Ensuring that arbitrary restrictions are notplaced on the press in the coverage of politically sensitive cases; and

·Ensuring that lawyers, like other citizens, are ableto exercise their rights to freedom of expression, belief, association, andassembly.

Human Rights Watch also urges key internationalinterlocutors of the Chinese government and Chinese legal community to pressthe government to keep its commitments to law reform, professionalization ofthe legal community, and the rule of law. Large sums of money are allocated everyyear by foreign governments and international organizations to legal aid to China.While these efforts are laudable, their efficacy will remain minimal ifrestrictions on lawyers identified in this report are not lifted, and theinternal dynamic of legal reform thus continues to be unnecessarily held incheck. Key international interlocutors should also urge the Chinese government toissue an invitation to the United Nations special rapporteur on the independenceof judges and lawyers to assess the situation of the legal profession and thejudiciary.

More detailed recommendations, as well as more immediatesteps the Chinese government can take, appear at the end of this report.

Methodology

This report is based on field research conducted over 12months in Beijing, Shanghai,and Guangzhou. Theresearch included extensive review of Chinese language sources-including newsaccounts, official publications, and scholarly journals-discussions with scoresof experts and analysts both inside and outside China, and 48 in-depth interviewswith Chinese lawyers, legal experts, rights activists, and journalists withfirsthand knowledge of the cases and issues covered in this report.

The scope of this study is necessarily limited by researchconstraints in China.Chinaremains closed to official and open research by international human rightsorganizations. Over the years, Human Rights Watch has received numerous reportsof the detention and interrogation of Chinese activists and scholars, includinga number of lawyers, because of their contact with international human rightsgroups. As this study documents, many Chinese lawyers working on human rightsor civil rights cases are closely monitored, and some have been interrogated ordetained for their work.

As a result, unless otherwise noted, Human Rights Watch has replaced interviewees' names with initialswhich are not the interviewees' actual initials, and has not included other informationthat could be used to identify the interviewees. Interviews were conducted insettings that were as private as possible. All interviews in China were conducted in Mandarinwithout the assistance of interpreters.

Human Rights Watch takes no position on the underlyingmerits of the legal cases mentioned in this report, but rather focuses on whathappens to lawyers who become involved in them.

II. International Standards for Lawyers

The independence of lawyers is a fundamental principle ofinternational law. Lawyers play a key role in the administration of justice andprotection of human rights. The importance that the international communityplaces upon the independence of the judiciary and of lawyers is evidenced bytheir prominence in numerous international and regional treaties,[10]United Nations (UN) resolutions,[11]and international statements,[12]to many of which China hasagreed, such as the Beijing Basic Principles on the Independence of the Judiciary.[13]

Chinahas also signed but not yet ratified the International Covenant on Civil andPolitical Rights (ICCPR). Many of its provisions are part of internationalcustomary law. Among other things, the ICCPR recognizes the right to counsel,the principle of equality before the courts, and the right to a fair and publichearing by an independent court established by law.[14] TheUnited Nations Human Rights Committee, which oversees implementation of theICCPR, stated in its General Comment that "[l]awyers should be able to counseland to represent their clients in accordance with their establishedprofessional standards and judgment without any restrictions, influences,pressures or undue interference from any quarter."[15]

The most detailed exposition of the rights andresponsibilities of lawyers is found in the United Nations Basic Principles onthe Role of Lawyers.[16]Among other things, the Basic Principles provide for:

·The independence of lawyers: "Adequateprotection of the human rights and fundamental freedoms to which all personsare entitled … requires that all persons have effective access to legalservices provided by an independent legal profession."[17]

·Freedom of expression and association: "Lawyersshall be entitled to form and join self-governing professional associations …The executive body of the professional associations … shall exercise itsfunctions without external interference."[18]

·Confidentiality of communications betweenlawyers and their clients: "Governments shall recognize and respect that allcommunications and consultations between lawyers and their clients within theirprofessional relationship are confidential."[19]

·Protection from unlawful interference:"Governments shall ensure that lawyers (a) are able to perform all of theirprofessional functions without intimidation, hindrance, harassment or improperinterference; (b) are able to travel and to consult with their clients freelyboth within their own country and abroad; and (c) shall not suffer, or bethreatened with, prosecution or administrative, economic or other sanctions forany action taken in accordance with recognized professional duties, standardsand ethics."[20]

·Right to due process for lawyers facingdisciplinary sanctions: "Lawyers shall be brought before an impartialdisciplinary committee established by the legal profession, before anindependent statutory authority, or before a court, and shall be subject to anindependent judicial review."[21]

In addition, "The accused or his lawyer must have the rightto act diligently and fearlessly in pursuing all available defenses and theright to challenge the conduct of the case if they believe it to be unfair."[22] 

These principles are now commonly referred to in academiclegal studies in China,although they have not been incorporated into domestic law.[23]

III. China's Legal Profession

The President of the Supreme People's Court has issued importantwritten instructions: courts at all levels must respect the professional rightsof lawyers according to law…. and jointly protect fairness and justice.

-Notice of the Supreme People's Court, March 13, 2006[24]

The judicial organs will only give you what they want….This is like a tiger blocking the road. Chinese lawyers are powerless.

-L.W., a Beijinglawyer, November 2007[25]

The development of the legal profession

China'srecognition that a functioning legal system is necessary to support economicdevelopment, its accession to the World Trade Organization, and externalpressure for a rules-based system for business haveresulted insignificant advances for thelegal profession.The number of lawyers has surged dramatically over thepast 20 years. In 1986 there were about 21,500 lawyers. This more than doubledto 45,000 by 1992, as the first private law firms emerged, largely to servicethe growing private business sector. There are now around 143,000 lawyers and 13,000law offices.[26]Local barassociations have become more vocal in promoting the rights and interests ofthe legal profession. Academic debates and the internet have contributed tolegitimizing the role and value of lawyers in society.

However, the dramatic increase in the number of lawyers hasnot yet been accompanied by the establishment of an accessible, equitable legalsystem. Vast numbers of Chinese citizens are still unable to use the system toseek justice. The proportion of lawyers to the total population remains low, atjust 0.9 per 100,000.[27] The distribution of lawyers and lawfirms is disproportionately skewed towards the largest metropolises, such as Beijing, Shanghai, and Guangzhou, with fewservices available in the western and interior part of the country. Lawyersalso remain oddly outnumbered by judges and prosecutors: in 2004 there were190,000 judges and 125,000 prosecutors.[28]

The role of lawyers under Chinese law

Lawyers are regulated by the Law on Lawyers of the People'sRepublic of China(hereafter, the Law on Lawyers). This is the primary, but not the only, statutegoverning the legal profession. It was revised in October 2007 in part to strengthenthe rights of lawyers in legal proceedings, but failed to offer better avenuesof redress when these rights are violated. Although the revised law will becomeeffective on June 1, 2008, some of its most crucial advances depend ultimatelyon the revision of now conflicting provisions in the Criminal Procedure Law,which takes precedence over the Law on Lawyerswhen the two are in conflict.

The crucial issue of the lack of independence of theprofession remains unchanged. Under Chinese law, lawyers are not free to formtheir own professional associations. Lawyers, law firms, and bar associationsremain under the authority of the Ministry of Justice (MOJ), which gives them"supervision and guidance."[29]The All-China Lawyers Association (ACLA), the Chinese equivalent of a nationalbar association, is nominally in charge of "self-governing" the profession, butit too is subordinated to the MOJ.[30]

The ACLA and its local branches must comply withinstructions issued by the MOJ, and must regulate the profession in accordancewith the directives of the MOJ's department in charge of lawyers, the "Lawyersand Notaries Bureau." All lawyers must join the local branch of the ACLA inorder to practice,[31]and joining the local branch also means being a member of the ACLA.[32] The head andsecretary of the local lawyers association are generally chosen by localjudicial authorities.[33]

Lawyers and law firms are therefore placed under a system ofjoint authority by the MOJ and by the MOJ-controlled lawyers associations. The judicial bureaus, the branches of theMinistry of Justice at the local level, assume "macro-control," including guidance,admissions, administration, and coordination, while the lawyers associationsassume "micro-control" of body structure, professional duties, daily affairs,training, and education.[34]Disciplinary proceedings against lawyers by the MOJ or lawyers associations arenot subject to independent judicial review.

The emergence of theweiquan movement

Partly in response to the inadequacy of legal remedies forlarge swathes of the Chinese people, who seem to have few avenues other thanbringing their grievances to the streets, a movement of lawyers, law experts,and activists who try to assert the constitutional and civil rights of thecitizenry through litigation and legal activism has emerged in past five to sixyears. The self-named "rights protection movement" (weiquan yundong) remains highly informal, and is mainlycharacterized by its willingness to take up and publicize cases that arepolitically sensitive because they involve citizens with grievances againstlocal governments or state agencies.

"In essence," a recent academic study of the movement says,"lawyers and activists in theweiquanmovement are generally always on the side of the weaker party: (migrant) workers v. employers in labordisputes; peasants in cases involving taxation, persons contestingenvironmental pollution, land appropriation, and village committee elections;journalists facing government censorship; defendants subject to criminalprosecution; and ordinary citizens who are discriminated against by governmentpolicies and actions."[35]

By circulating articles, maintaining web pages, andmobilizing internet communities, concerned journalists and scholars, and theforeign media, members of the rights protection movement frequently expose thelack of legality in local government decisions and lack of credibility incentral government claims to "ruling the country according to law."

Weiquan lawyersand activists are often openly critical of the deficiencies of the legalsystem, and in particular of the lack of independence of the judiciary. At thesame time, the hallmark of the movement has been to keep all activitiesstrictly within the realm of Chinese law.[36]Along with other legal activists,weiquanactivists have been involved in providing legal advice in a number ofhigh-profile cases of protests, such as those in Taishi (Guangdongprovince), Tangshan (Hebei),and Zigong (Sichuan), which have attracted widespreadattention, including from the international media.[37]

Weiquan has nowbecome the term now typically used in China to identify the type of legalactivities commonly referred as "cause lawyering," or public interest legal work.[38]

IV. LegalRule and Party Rule: A Deliberate Contradiction

All law-enforcement activities should be led by the Party.All reform measures should be conducive to the socialist system and thestrengthening of the Party leadership…. The correct political stand is wherethe Party stands."

-Luo Gan, Head of the Political and Legal Committee,February 1, 2007[39]

The power of the courts to adjudicate independently doesn'tmean at all independence from the Party. It is the opposite, the embodiment of ahigh degree of responsibility vis-à-vis Party undertakings.

-Xiao Yang, President of the Supreme People's Court,October 18, 2007[40]

China'stop leaders have acknowledged that greater demand for rights protection andmany social protests are responses to local government abuses, and havepromised to enhance access to judicial and administrative remedies, reiteratingat every opportunity their commitment to the rule of law.

InOctober 2007 President Hu Jintao pledgedin his report to the 17th Party Congressto"build a fair, efficient and authoritative socialist judiciary system to ensurethat courts and procuratorates [the Procuracy offices] exercise theirrespective powers independently and impartially in accordance with the law."[41]

PremierWen Jiabao has made many similar statements. InJanuary 2006, he acknowledgedthat "some localities are unlawfully occupying farmers' land and not offeringreasonable economic compensation and arrangements for livelihoods, and this issparking mass incidents in the countryside."[42] In March 2006, he promised "effective legal services andlegal aid so as to provide effective help to people who have difficulty filinglawsuits," and a "strict, impartial, and civilized enforcement of the law."[43]  And in March 2007, he pledged to"do a good job … in providing legal services" and more specificallycalled onlaw enforcement agencies to "exercisetheir powers and carry out their duties in strict accordance with legallyspecified limits of authority and procedures" and "acceptthe oversight of the news media and the general public."[44]

Yet despite the vigorousdevelopment of legal institutions over the past two decades, a basic contradictionremains: the Party pledges to operate under the primacy of the law, yet it insistsat the same time on Party supremacy in all matters, including the law. TheConstitution is defined as having "supreme legal authority," but also enshrinesthe principle of the "leadership of the Communist Party." Courts are supposedto adjudicate independently, but the Party opposes the idea of an independentjudiciary. Power nominally resides in government organs, yet real power restswith the Party committees that shadow those organs at every level. State organsmust carry out the paramount task of protecting "social stability" by offeringlegal remedies to protesters with legitimate complaints, but they must alsosuppress them if Party authority risks being undermined.

In practice, this permanent contradiction greatly underminesthe effectiveness of the formal legal entitlements of Chinese citizens. Theirability to exercise their rights-or turn to the courts if their rights areviolated-remains subject to the arbitrary assessments of Party authorities. Combinedwith the traditionally extensive powers of the bureaucracy, this creates a highdegree of legal uncertainty for plaintiffs. Some social grievances aredetermined as legitimate while others are seen as destabilizing and musttherefore be suppressed. Some protests are tolerated, while others are quashedand their organizers imprisoned. Some environmental, labor, and social activistsare tolerated or even encouraged, while others are suppressed and arrested.Some lawsuits against local governments are allowed, while others are proscribedand their initiators punished.

In essence, when the larger goals of the party-state and theprocesses of a professional judicial system align, the system can function fairlyindependently. But when the Party decides that its political interests do notcoincide with the administration of justice, rule of law considerations aresuspended. Internally, Party and government authorities justify these shifts bythe Party's own ideological axioms about the need to protect Party rule andpolitical expediency, such as "looking at the big picture," "protecting socialstability," or "harmonizing legal and social results." The determinationprocess-in Party parlance,ding xing:"making a determination regarding the[political] nature of a situation"-is intrinsically political and arbitrary. Ittakes place outside of considerations for the integrity of the rule of law andrelegates the role of the judiciary to a simple instrument of the Party.

Similarly, appealing to "socialstability" is the most common justification given by the government for politicallymotivated repression of perceived dissenters or critics. Officials often cite the "adverseconsequences" of news stories for "social stability" as a reason for censoringmedia reports about social unrest or punishing news outlets and journalists forreporting on them.[45] The cover-up of public health crises (such as the Severe AcuteRespiratory Syndrome epidemic in 2003)[46]or industrialaccidents (such as the chemical spill in the SonghuaRiverin November 2005)[47]have also beenjustified by the need to preserve "social stability."

At every level, China's key legal institutions areunder the authority of the Party's political and legal committees. Throughthese institutions, corrupt local power holders can easily instruct the policeto abandon investigations, foreclose legal challenges, and dictate the outcomeof particular cases to judges, or frame protesters and activists on vaguecharges of threatening state security and social stability.

There are other structural factors that make it especially difficultfor ordinary Chinese citizens to get access to justice. Legal institutionsremain tightly controlled by state organs, the Party does not rely primarily onthe judicial system to investigate corruption and wrongdoing of its members, manygrievances are turned toward an ineffective petitioning system, and freedom ofexpression and the press remain highly constrained.

The low status of the legal profession is particularlysalient in relationship to the law enforcement and judicial organs of the state,colloquially referred to as thegongjianfa:the Public Security Bureau (Gong'an,the police), the Procuracy (Jianchayuan,the public prosecution), and the courts (Fayuan).Of these three institutions, the Public Security Bureau is by far the most powerful,as its minister is traditionally a member of the Political Bureau of theCentral Committee, the most important part of the party-state.[48] At the locallevel, the head of the Public Security Bureau is always a member of the PartyCommittee and generally the head of its powerful Political and Legal Committeein charge of legal affairs.

The imbalance of power between state judicial institutions andthe legal profession means that Chinese lawyers depend greatly on cooperationfrom the former to perform their duties. Standard procedures such as accessingcourt documents and evidence held by the investigating organs, filing a case incourt, or meeting with a client in detention are in practice achieved only atthe discretion of these institutions.

The government has recognized the existence of theseproblems. In 2005, a task force from the National People's Congress was formedto investigate difficulties faced by lawyers and report to the President of theSupreme People's Court (SPC), China'shighest judicial body. Subsequently, the SPC acknowledged that "Certain courtsand a small number of adjudicators and tribunal staff did not respectsufficiently the rights of lawyers and their role in litigation procedures, andsometimes violated their rights." In March 2006, the SPC promulgatedregulations calling courts to "earnestly implement the Law on Lawyers andprotect lawyers' professional rights."[49]

But even lodging cases can be difficult forlawyers.Courts have a large degree of discretion in accepting cases, andfrequently apply political and legal criteria in determining whether to acceptcases.[50]Courtsare often instructed by Party or government authorities not to take up certaincases or category of cases.[51] For instance, residents in Beijinghave reported that the courts were instructed not to take up cases of residentsforcibly evicted for urban redevelopment.[52]

The court structure is also an impediment to meaningfulparticipation of lawyers. Under the current system, cases deemed important or"especially complicated" are internally decided by "adjudicating committees [shenpan weiyuanhui]," composed of seniorjudges and judges who are often members of the Party's Political and LegalCommittee in charge of legal affairs.[53]Judges are then bound by the decision of the adjudicating committee. Lawyers donot participate in adjudicating committee meetings and cannot have their viewsrepresented there.[54]

Corruption is also an obstacle to obtaining justice.[55] A corruption casein 2004 in Wuhan,one of the largest courts in the country, exposed a sophisticated scheme ofcorruption within the court system and showed how multiple levels of judges andadministrators were able to form circles of mutual benefit and profit. Rewardedactivities in this system of bribe extraction included "taking bribes from theplaintiff and the defendant[chiyuangao,beigao],""manufacturing court cases[zao jiaan]," "selling evidence of the court case[mai zhengju]," "receiving kick-backs for passing cases [chihuikou],""abusingthe power of judges to order suspension of businessoperation orconfiscation of property[lanzhixing],""demanding commissions for making beneficialjudgment [gao youchang fuwu]," and"embezzling court funding [tanwu nuoyong zhixing kuan]."[56]In 2006, a total of 292 judges across the country were found to have abusedpower for personal interests, and 109 of them were prosecuted and sentenced.

Retrenchment: The campaign for "socialist rule of law"

In April 2006, the authoritieslaunched a large-scale political campaign for "education in socialist rule oflaw concepts [shehuizhuyi fazhi li'nianjiaoyu]," aimed at"strengthening and improving the Party'sleadership over judicial work"andemphasizing the difference between "socialist rule of law" and "Westernrule of law."The campaign wasintroduced by a landmark speech by Luo Gan, a senior member of the Politburoand the head of the Party Central Committee's Legal and Political Committee (thehighest policy-making authority in legal matters),[57] on April 11, 2006. Luo announced an initiative to the strengthen theleadership of the Party over the courts, curb liberal ideas about greaterindependence for judges and lawyers, oppose the "infiltration" of the judiciaryby unspecified "hostile foreign forces," and shift collective litigation fromthe judiciary towards the mediation system.

He also urged tighter controlover legal activists, in particular theweiquanmovement. Specifically, he urged the adoption of "forceful measures … againstthose who, under the pretext of rights-protection [weiquan],carry out sabotage … so as to protect national security and the politicalstability of society."[58]  

Although the leadership role ofthe Party and the need to ward off threats to political stability are common themesin CCP rhetoric, this speech marked a departure from earlier policies andpractices regarding the gradual professionalization of the judicial system.

A set of political instructions directed at judges in aprovincial court shortly after the launch of the campaign illustrates the retreatfrom increased professionalization of the courts:

Recently, some judges have started to believe that to be ajudge you just have to strictly apply the law in a case. In fact, this kind ofconcept is erroneous, [as] 'strictly apply the law' can have differentexplanations … [and] all the legal formulations have a clear politicalbackground and direction.[59]

Another target of the campaign was the judges' desire for greaterjudicial independence. In the same court document cited above, the PartyCommittee instructed court cadres to "respect political discipline":

We often talk now about giving prominence to the judge'sposition, but these are only words … we haven't said that the judge can escapepolitical discipline. Court cadres must talk about politics and respectpolitical discipline … We must stamp out the kind of narrow viewpoint thatthinks that you can also do court work by having judicial independence, havingthe courts judge behind closed doors and not communicate with the relevantdepartments.[60]

In October 2007, a speech fromthe president of the People's Court, Xiao Yang, reiterated the importance ofthe shift from judicial independence to Party leadership: "The power ofthe courts to adjudicate independently doesn't mean at all independence fromthe Party. It is the opposite, the embodiment of a high degree ofresponsibility vis-à-vis Party undertakings."[61]

In contrast with the repeated claims that the courts mustuphold "justice, [and] fairness, [and] base their decisions on the law only andserve the public," these instructions are clearly designed to make thejudiciary even more subservient to the Party.

The socialistrule of law education campaign was also marked by the imposition of additionalrestrictions on lawyers handling collective cases and by a renewed crackdown onweiquanlegal activists.

A fewweeks before the formal announcement of the campaign, the government imposednew limitations on the legal profession by adopting regulations that significantlyhinder the ability of lawyers to represent collective cases and protesters.[62]

The "Guiding Opinions on Lawyers Handling Mass Cases,"promulgated through the All-China Lawyers Association, cited the need tomaintain "stability" as a reason for their promulgation. They referred to the"major impact" that land seizures, forced evictions, relocations from damareas, and lays-offs resulting from state-owned enterpriserestructuring-precisely the kinds of problems that give rise to "masscases"-can have on "the country's stability."[63]In essence, the Guiding Opinions made clear that political considerations wereparamount and that lawyers must act as auxiliaries of the judicial bureaus whenhandling politically sensitive cases involving protesters.[64] The regulationswere widely perceived as suppressingweiquanlawyers, who had been representing many collective cases.

At the same time, the government'shostility towards theweiquanmovement wasreflected in the arrest and conviction of three of its most outspoken members,Chen Guangcheng, Gao Zhisheng, and Guo Feixiong. All three men had beenproviding legal advice to protesters and plaintiffs suing governmentauthorities-Gao as a qualified lawyer, Chen and Guo as legal advisers (underChinese law, it is not necessary to be a qualified lawyer to represent adefendant, including in criminal trials).[65]

The socialist rule of law education campaign also signaled tighteroverall controls over the legal profession. In September 2006, the vice-ministerof justice in charge of the administration of lawyers, Zhao Dachen, called for"strengthening the management" of the legal profession and guarding againstneglecting "the essential attribute of the socialist legal worker."[66] The vice-ministeropenly stipulated that lawyers consider not only the legal results but also the"social result" of their work, so as to "build a high quality corps of lawyersthat reassures the party and makes the people content."

The speech also called for "purifying the thinking" ofjudicial workers, and imparting to "the teams working on the administration oflawyers and the lawyers at large to 'ideological education.'" It sternlycriticized judicial officials who neglected the "political attributes" of legalprofessionals:

Some comrades unilaterally believethat the legal service of lawyers is a mere legal professional activity, theyneglect its intrinsic political attributes; … Some comrades incorrectlyindicate that lawyers are a liberal profession, and neglect the essentialattribute of the socialist legal worker.[67]

The vice-minister also warned against "ignoring nationalconditions" when copying foreign legal practices:

On the issue of perfecting the lawyer system, there aresome comrades who simply copy from other countries' methods, ignoring the nationalconditions … It is necessary to strengthen further the concept of the generalsituation and all the work of the judicial administration must be incorporatedin the general situation of the work of the Party and the state.[68]

In November 2006, Wang Shengjun, Secretary of the Politicaland Legal Committee of the Party, warned lawyers about opposing the Party:

There are people who use the tools of Western legal theory,and put on the hat of 'ruling the country according to law' to negate theleadership of the Party in respect to political and legal affairs; take up theslogan of 'judicial reform' to negate the socialist judicial system; or stir upindividual cases to defame the political and legal organs, attempting to bringchaos in the sphere of judiciary ideology.… We must unwaveringly uphold thepolitical socialist direction of China's political and legal work.[69]

In February 2007, warnings about the subversive character offoreign legal concepts were even more explicit in a new landmark speech by LuoGan, the head of the Political and Legal Committee, and published inSeeking Truth, the theoretical journalof the Central Committee. Luo Gan's speech urged legal organs to guard against "hostileforces (who) have been trying their best to attack and fundamentally transformour judicial system."[70]

All law-enforcement activities should be led by the party.All reform measures should be conducive to the socialist system and thestrengthening of the party leadership … There is no question about where legaldepartments should stand. The correct political stand is where the partystands.[71]

Luo nevertheless acknowledged that social unrest hadlegitimate causes. In some protests, participants had no direct interest in thecause but were venting accumulated anger, he said, adding that judicialdepartments should "reflect on this phenomenon" and "safeguard social justiceand fairness."[72]

Yet, the crackdown against rights activists continued. InAugust 2007, the Ministry of Justice ordered the dissolution of the Beijing Bar Association'sConstitutional and Human Rights Committee. The committee, established in 2001,was known for its progressive stance and counted several high profile publicinterest lawyers as members.[73]

On October 28, 2007, the government passed the long-awaitedrevisions to the Law on Lawyers,[74]a movestate media hailed as designed to "make life easier for lawyers."[75] But two dayslater, on October 30, in an important speech pronounced at the closure of atraining session on "Socialist rule of law concepts" held by the All-ChinaLawyers Association, Vice-Minister of Justice Zhao Dacheng ruled out greaterindependence for the legal profession, stressing to the contrary the need tofurther control the work of lawyers as a way to diffuse social unrest.

"Lawyers must guard against the concept of mereprofessionalism, and carry out in their work the unification of legal andsocial results," Zhao said.[76] 

Mass cases coming from conflicts over land confiscation,demolition and evictions, relocation from dam areas, enterprise reforms,environmental polices are growing by the day. In these circumstances judicialadministrative organs and bar associations must conscientiously carry out theguidance and supervisory duties, positively guide lawyers in accordance withthe 'Guiding Opinions on handling mass cases' and other regulations andrequirements.[77]

In essence, "harmonizing legal and social results" requiresthat lawyers tailor legal solutions to what the Party thinks best serves socialstability.

Against this highly politicized background, lawyers in Chinaface huge obstacles in defending citizens whose rights have been violated. Yet,more and more lawyers are taking such cases, encouraged by profound socialdynamics such as rising rights awareness among the populace, repeated expressionsof commitment to the rule of law by the authorities, support from legalprofessors and experts, the growth of a professional culture among judges,prosecutors, and legislative drafters, and, at least for some, the high socialstatus lawyers enjoy when they are commercially successful.

V. Violence Against Lawyers

For the past few years the working environment of the legalprofession has become more dangerous day by day.

-Text of an open letter by 53 lawyers, December 2006

For lawyers, retaliation by the local authorities is a bigdanger. We are all walking on thin ice.

-P.D., a Beijinglawyer, November 2007

Many Chinese lawyers routinely complain that violence, orthe threat of violence, is an ever-present risk against which they feelinadequately protected by the state. The majority of cases of violence againstlawyers are purely criminal, but many others are linked to their involvement incivil rights or human rights cases, and a few seem abetted by law enforcementpersonnel or local officials. This chapter documents the failure of the Chinesegovernment to fulfill its responsibility under the law to adequately safeguardthe security of lawyers and people who, without having the formal status oflawyer, exercise the functions of lawyers.

The government acknowledges that lawyers play an importantrole in the administration of justice and has indicated-including throughinstructions issued by the Supreme People's Court-that legal institutions andlaw enforcement agencies must ensure that lawyers receive sufficient protectionso as to be able to carry out their functions unhindered. But, in practice,lawyers say that criminal threats and assaults against them are a frequentoccurrence; that those instances are not vigorously investigated; that barassociations are unwilling or unable to help them; and that they have to keepsilent about specific incidents for fear of retribution or loss of business.

Despite lawyers being adamant that the risk of violenceagainst them is an acute problem for the entire legal profession-a claimsupported by countless articles in professional and legal publications-thereare no recent published empirical studies documenting this. Very few cases havebeen reported in the official media over the years.[78]Individual cases that have been given publicity in domestic media rarely involvepolitically sensitive cases and tend to show the government responding to theviolation. This pattern suggests that only isolated cases or general andabstract discussions about them are tolerated in professional, academic, andmedia publications.

Indeed, after the national bar association published forrestricted distribution a ground-breaking report on abuses against lawyers in2002, in the context of a three-year program to study the problems faced bylawyers, Beijing judicial authorities cut the program short and prohibited thepublication of similar reports.[79]The report, based on a survey of 598 respondents, exposed severe difficultiesfor lawyers, and described cases of lawyers harassed, detained, arrested, orprosecuted in the course of carrying out their professional duties.[80]The cases included lawyers assaulted by the opposing party: Yan Yujiu(Sichuan), She Yuanxi (Sichuan), Pei Shan (Xinjiang), Wang Bing (Liaoning), JiaTianjin (Henan), Wang Fei (Chongqin); lawyers attacked by unidentifiedaggressors, including Liu Chixian (Guangxi), Yu Haifeng (Shandong), YangJianxin (Heilongjian), Teng Kuang (Heilongjiang); and lawyers kidnapped by theopposing party including Ren Shangfei (Hebei) and Chen Guangqiang (Fujian).[81]

In December 2006, 53 lawyers and law experts took the rareinitiative of addressing an open letter to the central authorities to ask thegovernment to protect lawyers.[82]The drafters of the letter, lawyers Cheng Hai, Gao Fengquan, Zhang Lihui, LiHeping, Ouyang Zhigang, Li Jinsong, and Meng Xianming, wrote that theenvironment had grown "day by day more dangerous" over the past year:

For the past few years the working environment of the legalprofession has become more dangerous day by day. Not only must lawyers face allsorts of illegal restrictions from the judicial and administrative departments,such as being followed, being, at times violently, prevented access [to clientsor witnesses], or being prevented from gathering evidence, but their personalsecurity is also threatened.

These threats are not coming solely from the opposite party:they increasingly come from forces of the Public Security Bureau, the Procuracy,and the courts themselves. Between March and August this year, more than fourcases of lawyers being attacked by public security or court personnel have beenexposed nationally, this is a frightening development![83]

The government to date has not acknowledged the letter,while domestic Chinese media never reported the initiative. One lawyer toldHuman Rights Watch that the Party authorities in charge of judicial affairs hadinstructed the judiciary to maintain vigilance against "people who try to usethe legal system to attack the party and the government," and that it wouldnever respond to this type of public appeal.[84]

Gao Zhisheng, Chen Guangcheng, and thecrackdown on cause lawyering

The case of the human rights lawyer Gao Zhisheng, sentenced tofour years under subversion charges after months of increased harassment, hasreceived extensive international attention, and prompted foreign governments tomake regular diplomatic representations to the Chinese government, though withlittle apparent effect.[85]Along with the arrests of the blind barefoot lawyer Chen Guangcheng and the Guangzhou-basedlegal activist Yang Maodong (better known under his pen name Guo Feixiong), GaoZhisheng's arrest marked the peak of a campaign by the Chinese authorities tosquash what they perceived as a nascent legal opposition movement in 2006.

Suppression of Gao Zhisheng

Gao was a successful lawyer who specialized in defendingcases of corruption, land seizures, police abuse, and religious freedom. In2001 he was rated by theLegal Daily,a publication operated by the Ministry of Justice, as "one of the top tenlawyers in China."Increasingly outspoken, he started to take on more politically sensitive cases,including torture of practitioners of the banned Falun Gong movement. As the courtssystematically refused to lodge his lawsuits, he turned to writing reports andpublishing open letters denouncing these abuses, including to the topleadership of the Communist Party.

As 2006 progressed, the Chinese authorities first put GaoZhisheng and his family under around-the-clock police surveillance, then suspendedhis law firm license and stripped him of his professional lawyer's license.Then they arrested him, detained him incommunicado for six months, coerced himinto pleading guilty and relinquishing the right to choose his lawyer, and triedhim in proceedings his family members were not permitted to attend. He was thensentenced to four years' imprisonment for subversion with a five-year reprieve.[86]

According to the court, the reprieve was granted because Gaohad cooperated with the investigators and informed on fellow human rightsactivists. Gao later denied that he had informed on fellow activists, andstated that he had only agreed to the terms forced upon him by the authoritiesunder psychological and physical pressure. The interrogators had questioned himfor an extensive period of time under bright lights and openly threatened toretaliate against his family if he did not cooperate, he told a fellowactivist.

A long string of violent incidents that had begun in 2005,starting with constant surveillance by plainclothes police officers, gave Gaoreason to heed those threats. Thoseincidents included:

·On October 19, 2005, one day after Gao publisheda scathing open letter to the top state leaders about abuses against religiousand Falun Gong practitioners, he received an anonymous threat by phone: "Weknow where you live and we know where your daughter goes to school." The nextday Gao and his wife verified that their 12-year-old daughter was indeedfollowed by plainclothes police officers.

·On November 21, 2005, a group of unidentifiedmen followed Gao to a meeting in a restaurant with the United Nations SpecialRapporteur on Torture Manfred Nowak, crowding the room they were sitting in anddisplaying hostile, intimidating behavior. After a UN aide took a picture ofthe group, the men protested vehemently and forced her to delete the picture.Gao and Novak retreated to a hotel to continue without their meeting beingdirectly observed.

·On March 10, 2006, plainclothes police officerswho were monitoring his law firm stopped lawyer Li Heping-who was handlingGao's appeal against the suspension of his professional license-from accessinghis office. The men wrestled Li out of the building and threatened Gao.

·On July 30, 2006, Gao was violently beaten bypolicemen in charge of the surveillance of his home, and then briefly detainedat the local police station. Gao had come down from his apartment to requestthat they turn off the motor of their vehicle. A dispute erupted and three ofthe seven-man team posted there assaulted Gao. One of them tried to hit himwith a large brick. Gao sustained minor injuries to his left arm and to one ofhis legs.

·On August 15, 2006, Gao was arrested at hissister's home in Dongying municipality, ShandongProvince.He was taken away in a car and disappeared for over a month. His family wasfinally notified on September 21 that he was in police custody for suspectedcriminal acts.

·Gao's wife, Geng He, subsequently was warned bypolice officials not to contact or communicate with anyone, especially the media.If she complied, she was told, she would be able to meet Gao Zhisheng. (Gaoremained incommunicado until his trial on December 12.) The family continued tobe harassed by agents who monitored them around the clock, followed themeverywhere, prohibited friends and visitors from coming to see them, and warnedthem about communicating with anyone about Gao's case.

·On November 21, 2006, plainclothes policemenmade an attempt to pick up Gao's two-year-old son from kindergarten. Theofficers showed their police badge to the teacher, who refused to comply. Gao'swife's enquiries to the police went unanswered.

·On November 24, 2006, two police officers punchedGao's wife in the street after she challenged them for tailing her. She calledthe police station, which declined to send a patrol but asked her to report toa station close to her residence.

·On December 16, 2006, a few days before Gao'strial, his 13-year-old daughter refused to be escorted home from school in apolice car. Police officers dragged her into the car, bruising her legs andneck.

The violence and intimidation against Gao Zhisheng appearsmore typical of the tactics used by the authorities against people identifiedas political dissidents than the forms of intimidation recounted by averagelawyers. What made Gao a dissident in the eyes of the authorities was hisrefusal to yield to pressure and desist from denouncing the lapses of thejudicial system and the defects of Party control over the legal system. Gao'soutspokenness, his defense of the Falun Gong, his acerbic interviews withforeign media and open letter to the state leaders had clearly made his casethe province of the political police-the State Security Bureau and StateProtection Bureau-rather than the judicial authorities. The fact that theauthorities saw Gao as a dissident was later reflected in his sentence forsubversion, based on his having published nine articles that "defamed and maderumors about China's current government and social system, conspiring to toppledown the regime."[87]

Yet, even if in the eyes of the authorities Gao was tried asa dissident rather than a lawyer, his work as a lawyer prompted theretaliation. His case became emblematic of the authorities' blatant disregardfor legality in the methods used to silence him and the chilling effect hiscase had on the legal profession.

Attacks against Chen Guangcheng's legal team

The second case that attracted considerable attention in2006 was the long string of abuses and procedural flaws in the trial of theblind "barefoot lawyer" Chen Guangcheng. A self-taught legal activist, not alicensed lawyer, Chen documented abuses committed by the local family planningauthorities of Linyi municipality, ShandongProvince, in a reportmade public in June 2005.[88]He was first put under house arrest in mid-August 2005 as he was trying to helpfour villagers to bring a lawsuit against the family planning bureau. By thistime, Chen's case had become something of a "cause célèbre" amongweiquan and legal activists, and anumber of lawyers, legal experts, and rights activists started to organize hisdefense and publicize his case.

On March 11, 2006, following a confrontation with the policeover the beating of a neighbor by unidentified men, Chen was taken away bypolice and detained incommunicado for six months. After being formally charged with"inciting crowds to disrupt traffic" and intentional destruction of property,Chen was sentenced in August 2007 to four years and three months' imprisonment.In October, the appellate court annulled the first trial, although it did notmake clear on what grounds, and ordered the case remanded to the same court,which in December imposed the exact same sentence for the same crimes. Thesecond verdict was upheld in January 2007 by the appellate court.

Lawyers who came to Chen's defense were repeatedly subjectto intense harassment and in some cases physical attack every time they came toLinyi to visit Chen, interview relatives and villagers, or prepare for andattend the trial. Incidents included:

·On October 4, 2005, Bejing lawyers Li Fangpingand Li Subin, accompanied by law lecturer Xu Zhiyong, attempted to visit Chen, whowas then under arbitrary house arrest. They were stopped by over a dozenunidentified men surrounding Chen's house. Xu Zhiyong and Li Fangping wereshoved and punched, and the three men were taken to the Shuanghou policestation where they were interrogated until the following morning, before beingescorted back to Beijing.

·In late June 2006, while Chen was detained atthe YinanCountyDetentionCenter, three lawyersaccompanied by the Beijing-based human rights activist Hu Jia attempted tovisit Chen's family. As they entered the village, unidentified men surrounded theircar and flipped it over. The men threatened the group and physically preventedthem from reaching Chen's house. Lawyer Li Jingsong started to take picturesbut had his camera snatched by the men. Uniformed police present on the siterefused to intervene and took Li Jinsong in for questioning.

·On July 10, a few days before Chen's hearingdate for the trial, lawyers Li Jinsong, Li Subin, and Zhang Lihui, accompaniedby Hu Jia, traveled to Linyi to gather testimonies and visit Chen's relatives.Chen's wife was taken away in a police car before she could meet them.

·On August 17, lawyers Li Fangping and ZhangLihui, along with legal scholar Xu Zhiyong, arrived in Linyi for Chen's trial,due to be held the following day. Unidentified men physically intimidated thegroup in a restaurant, and accused Xu of being a pickpocket. The police detainedthe three lawyers, and held Xu long enough that he was unable to attend thetrial.

·On November 27, lawyer Teng Biao, who hadtraveled to Linyi to attend the re-trial of Chen, was forcibly taken away anddetained for five hours by the police. He was handled roughly, with five or sixpolicemen pinning him to the ground while they searched him, confiscated hismobile phone, and questioned him. He was released without explanation as to whyhe was detained.

·On December 27, lawyers Li Fangping and LiJinsong were ambushed on their way to meet with Chen to discuss his secondappeal. Two cars without license plates stopped the overnight bus on which theywere traveling. Eight unidentified men dragged Li Jinsong out of the bus andwithout a word started hitting him with metal pipes. Li Fangping stepped offthe bus and was attacked as well, sustaining head injuries that required emergencycare. The lawyers suspected that the local authorities knew of their itinerary,as they had communicated with the judge who had conveyed Chen's request to see them.

As in the case of Gao Zhisheng, the local authorities putunder surveillance, harassed and threatened the family of their target. Chen'swife, Yuan Weijing, has been under permanent surveillance since Chen's arrest.She has filed numerous formal and informal complaints, including with the helpof some Beijinglawyers, all to no avail. When Yuan attempted to travel to Manilain August 2007 to collect a human rights award from the Ramon Magsaysay Foundationon Chen's behalf, police confiscated her passport and sent her back to Shandong province. A fewdays later, she was forcibly pulled from the bus she had boarded to return to Beijing by a group of plainclothespolicemen.[89]To date she is still under around-the-clock police surveillance and hermovements are restricted.[90]

Chinese domestic media never reported on Gao Zhisheng's or ChenGuangcheng's cases except to announce their convictions,[91] andofficial spokespersons evaded questions from foreign journalists about thesecases during the Ministry of Foreign Affairs' weekly press conferences.

The conclusion thatweiquanlawyers drew from the cases of Gao and Chen was that the central authoritieswould condone physical abuses against lawyers if they were involved in casesthat could result in significant embarrassment for the government or the Party,even at the expense of damaging the credibility of the legal system as a whole.

"The silence of the central authorities implies that theyendorsed the actions of the local officials who beat up lawyers," said oneattorney directly involved in the Chen Guangcheng case.

In Beijingit is the state security that was doing the surveillance of some of the lawyers[during the trial]-how could the central government not know about the case?What's more, this case was widely reported by international media-theNew York Times,Radio Free Asia, we got calls frommedia from the world over. And it was a big discussion topic on internet.[92]

According to one account given to Human Rights Watch by alegal expert, the Ministry of Justice in Beijinghad initially not paid any attention to Chen Guangcheng's case, and that it wasthe local authorities in Linyi who were solely responsible for the abusesagainst Chen and various members of his defense team. But the centralauthorities then stepped in:

After the international outcry that followed the firsttrial, the central authorities were forced to take notice. The partyauthorities at the Ministry of Justice mandated a special small investigativeteam to review the case. The team concluded that the trial had clearly violatedthe procedures…. The Political and Legal committee of the Party ultimately decidedthat it could not uphold the trial but nor could it give encouragement to theweiquan agitators. So it instructed theappellate court to have the case remanded.[93]

It is impossible to verify this account of the centralauthorities' involvement, given the notorious opacity of decision-making incases with political overtones. Nevertheless, the Chinese government has aresponsibility to uphold the law. The silence of the government and theofficial media in face of what appears to have been blatant criminalintimidation and unlawful acts over many months indicates that the centralgovernment was, at a minimum, abetting the repressive tactics of the localauthorities and the political police.

Weiquan lawyersreadily acknowledge that Gao's and Chen's cases were out of the ordinarybecause their prominent standing in international media prompted the highest Partyauthorities to dictate the outcome.[94] Butthese lawyers are also adamant that these cases were emblematic of theprevalent problems that lawyers and legal advocates face in their work:physical danger, surveillance and intimidation by state security personnel,refusal by law enforcement agencies to protect lawyers or entertain complaints,impunity for the attackers, and media censorship surrounding the cases.

One lawyer, in reference to Gao and Chen, told Human RightsWatch:

These cases may have been exceptional but the problems theyexposed were typical of those that affect the legal profession. Completelytypical.[95]

Other lawyers who were not involved in the case shared thisview in private discussions.

What do you think? If this can happen when so many peoplepay attention to the case-lawyers, law professors, the foreign media, theinternet community-how could the situation be better in regular cases? Theproblems shown by the 'Old Gao' and [Chen] Guangcheng cases are really verywidespread.[96]

According to another lawyer, it was precisely because ChenGuangcheng's case was so typical that it inspired the legal community to supporthim.

Personally I don't think this case was well handled [byChen's legal team], but the hardships faced by the defense were not out of theordinary for lawyers in China.The local authorities are too powerful-this is why you have to avoid alienatingthe central authorities in a case like this.[97]

Beyond Gao and Chen: Recurring violence against lawyers

Violence against lawyers is not limited to high profilecases that the authorities see as political. In fact, cases of assault againstlawyers appear with disturbing frequency in all types of cases, from commercialdisputes to administrative lawsuits. Forinstance, between 2005 and 2006, at least five cases of physical assaultsagainst lawyers in Shanghaiwere reported and widely discussed in the domestic media.[98]

The cases of Wang Lin, who was beaten by a court official inTianjin, and of Mao Liequn, who was attacked bya gang in Shanghai,received nationwide attention among lawyers, with various bar associationtrying to publicize the incidents to advance the cause of lawyers in publicopinion and government circles. More sensitive cases like Gao Weiquan, who was draggedfrom a petition office, Yang Zaixin, attacked two weeks after having hisprofessional license suspended, and Tang Jingling, who was assaulted in Guangzhou, are well knownamongweiquanactivists but havereceived no publicity. All these cases were regularly cited by legalprofessionals interviewed by Human Rights Watchas typical of the dangers faced by lawyers.

Wang Lin,Tianjin

The March 2006 attack on Beijing lawyer Wang Lin is probably the mostfamous case to be covered by the official media. The fact that the incidenttook place just a few weeks after the Supreme People's Court had promulgatednew measures intended to strengthen "the protection of lawyers carrying theirprofessional duties" was of particular significance.[99]

On March 28, 2006, Wang Lin went to file a collectiveadministrative lawsuit against the government construction bureau at theTianjin Nankai District court. He was accompanied by 11 plaintiffs who werechallenging a decision from the Tianjin Construction Bureau to evict them,arguing that the scope of an eviction order granted two years ago had been broadenedwithout permission to encompass their homes.

The vice-head of the administrative court refused to acceptthe filing of the case, asserting that the plaintiffs needed to file individualcases, not a collective one. Wang suggested that he would do so, but the courtofficial replied, "Even if you file plaintiff by plaintiff we won't lodge thiscase." Wang asked for a written court document to that effect, which theofficial refused as well. "I am the court and the court is me. If I say nofiling, that means no filing," the official told Wang.

In the heated discussion that followed, the official triedto punch Wang, and then shoved him outside the court, grabbing him by the backof the neck and warning him: "Be carefulwhen walking in the street at night."

Because Wang was relatively well-known, having been featuredin a program by China Central Television that exposed the wrongful eviction ofover 7,000 people in central Hunan province, and having worked for aninfluential law firm, he managed to get a prominent newspaper, theBeijing Youth Daily, to run a detailedexposé of the incident shortly afterwards.

The publication of the article generated a strong debate amonglawyers, who spotted an opportunity to highlight their plight and denounce theauthorities' inaction. Many articles quoted Wang Lin's comments published on hispersonal website:

You can beat me up, but please do not beat me up in court;please do not beat me up as I carry out my professional duties. Being beaten inthis manner, I feel that not only myself but the law itself is being beaten. Andthis is what I find difficult to accept.[100]

One online commentator suggested that petty harassment oflawyers by court officials was widespread:

This is far from being the only case. In many localtribunals the personnel are really beyond belief! Last year a certain lawyerwas even attacked during the hearing by a court official…. Court personnel makeour work difficult and we have to endure countless humiliations.[101]

In early April, media reports announced that the presidentof the Supreme People's Court, Xiao Yang, had himself issued "internalinstructions [pishi]" to investigatethe Wang Lin incident "and solve it according to the facts."[102]

On April 15, the Tianjin Party political-legal committee setup an investigation team with members from the committee, the court and the Procuracy.[103]The team concluded that "there was not sufficient evidence to resolve thiscase," but nevertheless dismissed the court official. Although Wang waspersonally vindicated, the Nankai court has yet to grant a hearing for theadministrative lawsuit of the plaintiffs whose homes were destroyed.

Although the outcome of the episode-the sanction of a courtofficial-is the exception rather than the norm, lawyers interviewed by Human Rights Watch said that "the case wasemblematic of the behavior of some local courts."[104]

Gao Weiquan,Shenyang

Gao Weiquan's case is also illustrative. Gao (who is norelation to Gao Zhisheng), a 59-year oldlawyer from Shenyang, Liaoning Province, was physically assaulted on April 13,2006, as he attempted to file a complaint for retrial at the Letters and VisitOffice of the Liaoning Province High Court.

According to Gao's account, thestaff refused to file his complaint without explanation. Gao then asked to see thehead of the Letters and Visits office. He was told to "go look for himoutside." Three court staff members then brutally dragged him out of thebuilding, hitting and kicking him with their fists and feet. Gao called thepolice. The court personnel justified his physical removal from the court onthe grounds that Gao had been "petitioning without grounds" and "damaging thedoor" of the office. The police refused to lodge a formal complaint. The nextday, Gao filed a report to the Shenyanglawyers association and the Liaoning High People's court. Three weeks later, onMay 8, having still not received an official answer, Gao wrote an open letterto the provincial Liaoninglawyers association and posted it on the internet:

How come I have still not heard a word from the court? … A lawyer is beaten and so what? If even thelawyers association doesn't care, how can we expect the Public Security Bureauto do anything about it?[105]

Despite eliciting much support on internet from fellowlawyers, neither the local judicial authorities nor the Liaoning lawyers association have taken anyaction to date.

Mao Liequn,Shanghai

Even when local bar associations are more vocal, the resultsare limited, as illustrated by the attempt by the Shanghai bar association to improveprotection for lawyers after a 2006 spate of attacks against attorneys doingtheir jobs.

In August 2006, lawyer Mao Liequn was severely beaten by agang of 10 men while representing a Hong Kong company in talks to evict a Shanghai firm illegallyoccupying a dockside storehouse in Pudong. Mao suffered a broken nose andmultiple injuries to his head, hand, and body that required hospitalization."One man grabbed my clothes, hitting me with his fist on the face, whileanother one grabbed my hair. Other joined and blows rained all over my body,"Mao recounted to a Chinese journalist. His client, who was accompanying him,was also assaulted. Mao was then dragged into a nearby building, where he wasagain beaten up. An associate of Mao managed to call the police, and,crucially, to film from his car the assailants as they were escaping.[106]

The Shanghaibar association reacted vigorously. A spokesperson told the press that the MaoLiequn attack "came as a warning to all of us," and that the bar associationwas proposing draft legislation to strengthen the protection of lawyerscarrying out their duties. "In recent years many lawyers from Shanghai were assaulted in the course oftheir professional work," the spokesperson said.[107]"We feel that there should be a law for protecting lawyers."

Local press reports highlighted three other recent cases oflawyers having been assaulted: On September 28, 2005, a lawyer from the Guochenlaw firm was attacked and threatened by thugs while handling a commercialdispute between rival firms. The harassment continued afterwards, ranging from threatsto cutting the water supply to his private home. In two separate incidents inJuly and August 2005, two lawyers from the Guoxiong and Liancheng law firms, respectively,were attacked by disgruntled parties in front of the court building.

The Shanghaibar indicated that the proposed legislation would seek to guarantee the rightsand safety of lawyers during negotiations, investigations, and evidencegathering.[108]Such legislation had been discussed for a number of years and had been recommendedfor ratification by the judicial affairs committee of the Shanghai People'sAssembly as early as 2004, but to no effect. Despite the national attentiongiven to Mao's case, it failed to generate momentum for the adoption of suchregulations. 

A few months later, on October 19, 2006, another Shanghai lawyer wasviolently assaulted. He Wei, from the Minjiang law firm, was working free ofcharge on a labor case, seeking compensation for a worker who had lost threefingers in an accident at a printing company. When He tried to visit thecompany, the manager reportedly told him: "A lawyer? What kind of thing isthat?" and proceeded to beat him with the help of his associates, kicking himrepeatedly on the ground.[109]He Wei sustained a perforated eardrum and various other injuries that requiredhospitalization. Shanghai media reportedthe case, including on television, and He Wei's attacker was later sentence to ayear of imprisonment, but there was no new public appeal from the barassociation to enact regulations protecting lawyers.[110]

Despite the inability of bar associations across the countryto defend individual lawyers who represent sensitive human rights cases, theassociations often do show professional solidarity with the victims of abuses.

Li Heping,Beijing

Li Heping, a lawyer from the Beijing Globe law firm, waskidnapped, detained, and beaten by a group of unidentified men on September 29,2007. His captors released him after six hours, having threatened him withfurther violence if he did not leave Beijingpermanently. 

Initially a specialist in intellectual property and civillaw, Li had also participated in a string of sensitive cases, including that ofthe blind activist Chen Guangcheng; the underground Christian sect leader XuShuangfu, who was executed with 11 other members in November 2006;[111] Yang Zili, amember of a university discussion group (New Youth Study Group), who wassentenced in 2001 to eight years imprisonment for "subverting state power";[112]and other cases highlighting abuses by state agencies.

In the few days preceding the attack, Li had reported beingfollowed by police and plainclothes officers he believed he had met before andwere from the State Protection Bureau. On September 29, around 5 p.m., one ofthese officers invited him to get into his car. Li declined. Five minutes latera group of men seized Li, covered his head with a hood, bundled him into a car,and drove out of Beijing.He was then dragged into a basement where he was beaten up by men usingelectrical batons. They ordered him to leave Beijing with his family or face retribution.Li's captors also copied the contents of his computer, and took his externalhard drive, mobile phone chip, and notebook, before detaining him for a day ina Beijingsuburb. Li reported the incident the next day, and was promised a "seriousinvestigation" into the incident by the police. "They want all my family tomove out of Beijing, to sell my apartment, mycar and leave Beijing.In their words, I am to 'get the hell out of Beijing[gunchu Beijing],'" Li recounted to Radio FreeAsia the next day.[113]Li has since indicated he intends to continue his work undeterred.

Yang Zaixin, Guangxi

An attorney from impoverished Guangxi province, Yang Zaixin,was dismissed from his law firm in January 2006 after he took a series ofsensitive cases, including those of defendants accused of being members of thebanned Falun Gong. Yang posted articles online protesting his dismissal and continuedhis involvement in sensitive cases.

On February 17, 2006, his home was searched by the localpolice, who confiscated his computer and court case documents, and took him tothe police station for 24 hours to question him about his activities and linkswith overseas media and groups. Undeterred, Yang continued to denounce hisdismissal in internet postings and interviews with overseas media aspolitically-motivated, and announced that he would go to court to challenge it.On April 9, around 9 p.m., Yang was assaulted by a group of unidentified men infront of the school complex where he resides. The men punched and kicked Yang,and took turns hitting him after he fell to the ground.

Yang sustained minor head and ear injuries that requiredstitches, and bruises on his back, chest, and arms. Yang called the policeimmediately after the attack, but the police officer declined to send a patrol,requiring him to come first to the police station to report the case evenbefore seeking medical attention. Yang was bleeding and went to the hospitalfirst. When the head of the police station was contacted by a journalist fromVoice of America's Mandarin service, he denied knowledge of the attack, statingthat, "Last night, nobody came to report such a case."[114]

In August 2006, Yang traveled to Shandong province to attend ChenGuangcheng's trial. The local police apprehended him before sending him back toGuangxi, where he was detained for a few days by the police.[115]

Tang Jingling,Guangzhou

Tang Jingling's case provides another example of physicalattacks on and intimidation of lawyers by unidentified agents at the very time thatjudicial authorities are pressuring the lawyers to drop sensitive cases. Tang,a lawyer from Guangzhou who gained prominence in participating in a notoriouscase of counterfeited medicine, known as the "qi er yao" case, was working with rights activist Guo Feixiong on anumber of election recall cases, including in Taishi, Guangdong.[116]

On February 2, 2006, Tang was verbally provoked and hit bymen who appeared to have links to law enforcement agencies. A group ofunidentified men had started to follow Tang after he had visited Guo Feixiongthat day. Tang tried unsuccessfully to get away from them, before going towardsthe closest police station. According to Tang's account, one of the men then hithim from behind:

One of them, maybe their chief, was older than the others,very tall, with a heavy face. As we were walking towards the police station ina small alley, he suddenly hit me with great force in the back of the head. Iturned around and said 'Why did you hit me?' I talked to them calmly, [though] therewere other people in the street [who] all saw his belligerent gesture. Hedidn't reply. I gave him a look, and continued to walk in the direction of thepolice station. After a few steps, he hit me another time. Again, I asked himwhy. We continued to walk and at the turn of the alley, four people surroundedme.

Tang recounted that the men obstructed his passage withtheir bodies, pushed him around, and stamped on his feet. At this point Tangsaw a police car close by and went for help. The police took him to the policestation a few hundred meters from there. The men waited outside the police station.Tang then contacted SunYatsenUniversity'sProfessor Ai Xiaoming, a renowned rights activist, who came to the policestation to help Tang to file a complaint. The officer taking the depositionrefused to accept that Tang had been assaulted and failed to give a copy of thecomplaint to Tang. After Tang and Ai realized that the police would not accompanythem despite the presence of the gang outside of the police station, they tooka taxi to Ai's home, to which they were followed by the men who kept watchuntil 10 p.m. A few weeks later, inApril 2006, Tang lost his professional registration when his law firm withdrewhis annual renewal application. (See below section VI.)

As the cases above illustrate, physical intimidation oflawyers remains a pervasive risk. Violence is used as way to deter lawyers fromrepresenting certain plaintiffs, to deny them the ability to gather evidenceindependently, to discourage them from pursuing a case, to retaliate againstthem if they persist, and to frighten and silence them if they continue to beactive about causes after having been disqualified as professional lawyers. Moreover,violence and the threat of violence are not only the province of criminals but alsosometimes of non-state agents who appear to act with the knowledge of thepolice.

The failure of the government to ensure that lawyers areable to perform all their professional functions without intimidation appearsto be particularly conspicuous for lawyers who try to bring human rights casesbefore the courts, but not limited to these cases. The investigation of attacksagainst lawyers was a specific request of the 53 lawyers who addressed an openletter to the central authorities in December 2006. Without adequate protectionfor lawyers, the letter pointed out, the government pledges of building "alawful and harmonious society" were unrealistic:

We entirely support the general project of governing the Partyand the state according to law, as well as the establishment of a harmonioussociety. But a harmonious society must be a society based on legality. If theenvironment for lawyers deteriorates in this way, how can we advance alaw-abiding and harmonious society? We strongly request that the illegalitiescommitted by judicial organs and associated rogue agents be investigated so asto carry out the lawful protection of the security of legal professionalsdischarging their duties. We also demand that the Law on Lawyers be revised,and that relevant regulations and supervision measures be enacted, so as toimprove the environment in which lawyers work.[117]

Despite the widespread character of attacks on members orex-members of the legal profession and the repeated calls to address thissituation, the government appears to continue to turn a blind eye to theproblem.

VI. Intimidation

Lawyers interviewed by Human Rights Watchsaid a frequent source of threats or acts of violence against ordinary lawyersis criminal intimidation in the course of a legal dispute. This is mosttypically carried out at the behest of the opposite party, employing strongmenor thugs to discourage a particular lawyer or his law firm from representingthe case. Sometimes the aim is to discourage the counsel from embarking on aspecific legal step, such as producing evidence of corruption or wrongdoing incourt. Another frequent occurrence, lawyers say, is retaliation after a verdicthas been reached, or attempts to discourage legal efforts to see a judgmentenforced. Lawyers have also been attacked by their own clients for losing incourt.[118]

Many lawyers report that most threats come from persons whoclaim to be members of criminal gangs, or "secret societies [hei shehui]."[119] Somenewspaper accounts have reported that secret society members discouragedvictims of intimidation from going to the police by claiming that they hadlinks with Public Security Bureau or government officials. Consequently, the "secret societies" act withnear-total impunity.[120]In this context, threats are a sufficient deterrent keeping victims and evenlegal professionals from turning to the Public Security Bureau.

Intimidation of lawyers by criminal elements is reportedlyparticularly acute in disputes related to real estate and property ownership.Lawyers representing residents who are trying to bring lawsuits againstproperty development have been threatened to get them to drop their cases or toencourage their clients to accept the terms of the real estate companies.Because of the prevalence of local protectionism, lawyers are also more at riskof violence and intimidation when they travel to a local area to represent anoutsider or a party that is viewed unfavorably by the local power holders. Alocal company trying to keep out a competitor might benefit from the localauthorities "looking the other way" when they use illegal influence or criminalintimidation for that purpose.[121] 

Lawyers say that law enforcement agencies, which tend to seelawyers as an impediment to their work, do not prioritize investigating threatsor tracking attackers. Attacks against lawyers also do not seem to be seen bythe Public Security Bureau or the Procuracy as constituting the kind ofsubstantial threat to the legal system and the judiciary that warrants avigorous and speedy response.

We were unable to find any reports in official media overthe past five years of cases involving assaults or threats against attorneysthat were successfully brought to prosecution, including cases that would haveestablished a link between the attackers and one of the parties to a legaldispute. 

Because of these obstacles, lawyers themselves are reluctantto press charges and bring attention to attacks or threats they suffer. As alawyer working at a legal aid center in Beijingtold Human Rights Watch, threats are"part of the job," and "every lawyer has to exercise his own judgment inminimizing these risks."

Lawyers also fear making it known that they have beentargeted, as doing so could damage their ability to maintain or attractclients. "It is bad for business because the client must be confident thathis/her lawyer has sufficient status, connections and experience to be effectivein defending his/her interests."[122]Admitting to having been the target of intimidation or reprisals undermines theprestige of an attorney and exposes his vulnerability to extra-legal factors.[123]

Bar associations do not publish accounts or numbers of threatsor attacks against their members because it is considered "too sensitive" andmight reflect poorly on both the profession and the legal system at large. Forthat reason, lawyers say that they seldom report assaults and threats to thebar association, which contributes to the difficulty in assessing the extent ofthe problem and effectively remedying it.

Lawyers complain that two additional factors contribute totheir vulnerability. Lawyers haverelatively weak institutional status in the Chinese legal system: as"outsiders" they are an easy target for intimidation. Prevalent corruptionwithin law enforcement agencies also heightens their vulnerability. Lawyers tryto enlist the media to cover their cases and help them overcome official unwillingnessto take action.[124]

VII. Prosecution for Perjury

A particular subjectof concern to criminal lawyers is their vulnerability to prosecution for thecrime of "falsifying evidence" under article 306 of the Criminal Procedure Law(article 307 universally prohibits falsification of evidence and perjury). Thisarticle prohibits lawyers from tampering with evidence and "coercing or luringwitnesses" into changing their testimony and applies in situations in whichwitnesses recant statements made earlier (in most circumstances, to investigativeorgans).[125] 

Although article 306is not on its face objectionable, in practice it has been manipulated tointimidate lawyers or prevent them from effectively representing their clients.Some lawyers have been charged under article 306 after defendants or witnessesmisrepresented facts to them or fabricated evidence without their knowledge. Inother cases, prosecutors have brought charges against defense lawyers because awitness or client claimed an earlier statement to investigators was made underduress or for other reasons was inaccurate.

The provisions of article 306 are particularly detrimentalfor the rights of the defense because they make challenging the evidencepresented by the prosecution highly risky for a lawyer.Lawyers in general are adamant that many cases of alleged falsificationof evidence are initiated in bad faith by the prosecution, as a way toretaliate against the defense, in what is commonly called "judicial retribution[sifa baofu]":

Article 306 is vaguely phrased, and in particular there isno certainty about what exactly constitutes 'luring [yin you]' [a client or witness to falsify evidence]. In practice,if the client himself changes his testimony the lawyer is the one considered tohave forged the evidence, and there are very big difficulties in defendingagainst that sort of thing. This leads to a situation where many criminaldefense lawyers can easily be detained.[126]

A lawyer interviewedby Human Rights Watch said that therisks presented by article 306 had made criminal cases the least attractive todefend:

Lawyers in China often joke: 'If you want to do law, avoidat all cost being a lawyer; if you want to be a lawyer, avoid at all costcriminal cases; if you do criminal cases, avoid at all cost gathering evidence;if you want to gather evidence, avoid at all cost taking testimonies. Ignoreall this, and it isyou who will endup in a cell!'[127]

This situation has aclear chilling effect for defense lawyers, who may decide to defend clients lessforcefully than they otherwise would for fear of displeasing the prosecution.As one lawyer told Human Rights Watch:

If the prosecutor's office tells you, 'If you present thistestimony in court we will arrest you for tampering evidence,' what do you do?Do you go ahead and present the testimony nevertheless? In fact you have reallyno choice; you must find another entry point into the case to defend yourclient.[128]

Zhang Jianzhong, a prominent lawyer and advocate who served asthe head of the committee on lawyer's rights of the Beijing LawyersAssociation, was arrested in May 2002 and sentenced to two years in prison inDecember of the same year under article 307 for allegedly having assisted withthe fabrication of evidence. Many lawyers speculated that this case wasretribution for his having mounted a vigorous defense in two of the mosthigh-profile corruption cases involving government officials in recent years, thecases of Li Zhou and Cheng Kejie. In an unusually strong and public response,over 500 lawyers signed a petition in his support, while legal academics andthe All-China Lawyers Association submitted legal analyses to help his defense.

In another case, Chongqinglawyer Jiang Daocai spent 197 days in prison in 2004 on charges of helping hisclient to destroy evidence. Eventually the prosecution agreed to drop the casewhen the court deemed the charges baseless. While in jail Jiang was prohibited fromtaking up any cases. In its verdict, the Chongqing Yongchuan municipal courtwrote that "the procuratorate of Yongchuan had no basis for initiating theprosecution of Jiang Daocai." But Jiang had been sufficiently discouraged. Hesubsequently told a journalist:

I don't know if I will ever be able to be a lawyer again,and I don't know if I am still suitable to be a lawyer. I am now learning to bea driver, this is a great feeling…. Many of my lawyer friends have changedpaths, because of the conditions prevailing in the legal profession.[129] 

Wang Wanxiong, alawyer from Hubei'sTijiang municipality law firm, was arrested in July 2001 on the instruction ofthe Procuracy. In February 2002, the local court acquitted him and he wasreleased, but the Procuracy appealed. It was not until March 2004 that theHubei People's High Court finally fully exonerated him.[130]

Wang Yibing,a lawyer from a Heilongjiang law firm workingin Kunming (Yunnan province) was detained in December1997, before being acquitted by the appeals court two years later.

The manipulation ofarticle 306 also contributes to the general impunity for police officers whoengage in torture and ill-treatment of suspects in pre-trial detention, a time whenofficers are particularly eager to obtain confessions. Many lawyers would liketo be able to challenge depositions obtained under duress, but are unwilling todo so because of the risks of prosecutions. The UN Special Rapporteur on TortureManfred Nowak recommended in 2005 that the government "Abolish Section 306 ofthe Criminal Law, according to which any lawyer who counsels a client to repudiatea forced confession, for example, could risk prosecution."[131]

Public concern in Chinahas grown since 2005, when two high profile cases of wrongful convictions wererevealed.She Xianglin, a villager from Hebei, was freed after serving 11 years forthe murder of his wife, after she returned alive to her village. Another man,Nie Shubin, turned out to have been wrongly executed for a rape and murderafter the real killer confessed.The president of the Supreme People'sProcuratorate, Jia Chunwang reported in March 2006 that 930 officials had beeninvestigated for torture of detainees in 2006, adding that the issue "had notbeen effectively scrutinized and addressed."[132]

It is unclear how manylawyers have been prosecuted, detained, arrested, sanctioned or effectivelyprevented from defending their clients through the manipulation of article 306.According to a prominent lawyer interviewed by Human Rights Watch, a survey by the All-China Lawyers Association showedthat over 500 lawyers were detained, accused, or sanctioned for falsificationof evidence under article 306 between 1997 (when the article was introduced)and 2002, but 80% of them were ultimately cleared of any wrongdoing. The survey has not been published.

In 2006, sourcesquoted by the Ministry of Justice-runLegalDaily put the number of lawyers detained in connection with such charges at200, though the article did not specify the period considered.[133]Lawyers commonly assert that about 80 percent of cases in which lawyers are prosecuted arerelated to article 306 offences, although this may bundle together all thedifficulties encountered in gathering evidence, not only with respect to article306.[134]

Some legal scholarshave argued that "falsifying evidence" became the weapon of choice to prosecutelawyers as soon as it was introduced, replacing the use of embezzlement charges,but that the number of prosecutions against lawyers has not increased overall.[135] Theyalso point out that retaliatory prosecutions also reflect the fact thatcriminal lawyers have become more adroit in defending the rights of criminalsuspects:

Lawyers are intimidated and prosecuted because lawyers havebecome more proactive, aggressive and innovative in defending the rights oftheir clients and of their own, posing serious legal challenges thatprosecution has never encountered before. This challenge is possible becausecriminal justice reform in Chinain the past ten years has created opportunities and incentives for a growinglegal profession.[136]

In any case, the chargethat article 306 is often manipulated by the Procuracy is supported by the factthat many cases involving such charges never reach the trial stage after policeor prosecutorial investigation. But even if the case does not lead to anindictment, the lawyer loses considerable "time and energy to defend himself,not to mention the amount of lost fees and his ability to work."[137]

This continues tomake criminal cases unappealing to lawyers. Following an article describing theplight of lawyer Jiang Daocai in Chongqing, thehead of a law firm in Sichuanprovince expressed thoughts typical of many in the legal profession:

This is why currently I am not doing criminal cases!... Iflawyers cannot guarantee their own protection, how are they going to protectthe rights and interests of their clients?[138]

Unsurprisingly,there is a wide consensus among lawyers that article 306 should be repealed.Many lawyers have written in professional publications to criticize the articleand its misuse by the Procuracy to retaliate against the defense.

As Chen Ruihua, alaw professor at BeijingUniversity who has arguedrepeatedly against this provision, stated to the Ministry of Justice'sLegal Dailyin July 2007:

The only way to put our worries to rest is to abolishArticle 306. Otherwise, relevant authorities can seek criminal investigationsagainst lawyers on account of perjury and invoke Article 306 at any time.[139]

A prominent lawyerwho is also a delegate to the National People's Congress, Zhang Yan, hasrepeatedly called for the repeal of article 306. As early as 2000, sheintroduced a resolution calling for the withdrawal of the article. In 2006, sheagain introduced a resolution to that effect, listing four main reasons for theabolition, including the unwillingness of lawyers to take up criminal cases.[140]

Lawyers'publications often cite the fact that the average number of criminal casestaken up each year by lawyers in Beijingdropped from 2.64 in 1990 to 0.78 in 2000, although this does not take intoaccount the fact that the number of lawyers grew considerably during the sameperiod.[141] Therisks of "prosecutorial retaliation," along with a system of fixed-fees thatmake criminal cases financially unattractive, are cited by lawyers as majorfactors that dissuade them from taking up criminal cases. 

Article 306 has aparticularly deleterious effect on the ability of lawyer to represent humanrights cases. Victims of abuses committed by agents of the state, especially bythe public security, are already an irritation to the judicial authorities,thus presenting a considerable disincentive for lawyers to take them asclients, especially if the victims face criminal charges. It is telling that thenumbers of lawyers representing high-profile dissidents are very small; infact, a single law firm, that of Mo Shaoping, has represented the greatmajority of them. And, as he points out,"I have yet to win a single case."[142]

VIII. Limits on Ability to Represent Clients

Not only do we see cases of forced confession under torture,illegal search, illegal detention, overtime detention, and other illegal action,but such cases are not promptly investigated. This fosters illegality, whichleads to frequent miscarriages of justice.

-Legal Daily,August 25, 2005

We were warned not to represent Tibetans.

- A lawyer from Beijing whohad volunteered to represent Tibetan arrested after the unrest in Lhasa, April 2008

Lawyers in Chinaroutinely complain that their ability to represent their clients and participatein court processes, particularly in criminal cases, is subject to manyarbitrary restrictions imposed by judicial institutions and interference byother state institutions. They explain that judicial institutions routinelyignore their procedural requests, engage in obstructionist or delaying tactics,and at times threaten them with administrative or economic retaliation. Lawyerssay that courts and police often invokethe "exceptional" character of a case to deny them basic defense prerogativessuch as gathering evidence, meeting their clients in detention, producingwitnesses and experts in courts, cross-examining prosecution witnesses, andhaving access to complete court files.[143]

Restrictions are even greater in cases involving humanrights violations by state agents and politically motivated prosecutions.Lawyers say that the outcome of cases involving dissidents charged with statesecurity or state secrecy crimes are dictated by the political authorities.Under the current court system, cases deemed important or "especiallycomplicated" are reviewed by "adjudicating committees [shenpan weiyuanhui]," which are composed of senior judges andjudges who are often members of the Party's Political and Legal Committee.[144]Lawyers do not participate in adjudicating committees meetings and their viewsare not conveyed there.[145]

"Under this system, 'the judges who conduct the trial arenot the ones adjudicating it, and those adjudicating the trial are not the oneconducting it' [shen er bu pan, pan er bushen]-it completely invalidates the role of the defense," one lawyer toldHuman Rights Watch.[146]

As lawyers and legal experts are quick to point out, Chineselawyers in effect rely on personal networks to circumvent these problems andcompensate for the overall "weak status of the legal profession."[147]

Some scholars have argued thatbecause lawyers enjoy so few effective powers, it is essentially throughpersonal connections with members of the judicial system bureaucracy thatlawyers are able to carry out any work at all.

The challenges [lawyers]routinely face include various forms of obstruction, harassment, andintimidation, and even physical abuse, often at the hands of personnel in thepublic security administration (the police system), the procuracy (the publicprosecutor's office), and courts…. Surviving and even thriving in their hostileinstitutional environment demands formal and informal ties to the statebureaucracy.… [A survey of 1,000 lawyers conducted in 2000 by the author showedthat] ties to the state provided protection against various forms ofinstitutionalized, state-sponsored harassment and rent-seeking. Lawyers moredeeply embedded in the state reported fewer professional aggravations.[148]

Since the promulgation in 1996 of the Law on Lawyers, theChinese legal profession has generally been fairly successful in weavinginformal links with judicial personnel. It is these ties that ensure that a particular lawyer can assert many ofthe rights clients are guaranteed and, because cases are arbitrarily decided bythe authorities, goodwill alone often determines whether lawyers are informedof a case's current status, can gain access to court files, be notified inadvance of hearing dates, or learn whether there are political considerationsweighing on the case. 

The efficacy of these arbitrary ties often leads externalobservers to credit the legal profession in China with more legal authority injudicial processes than lawyers actually possess. More importantly, this typeof relationship-based goodwill from the judiciary does not extend to cases thatare particularly contentious or seen as politically risky, such as human rightsabuses committed by judicial personnel or the police; the trial of politicaldissidents, religious dissenters, or members of groups explicitly designated asthreats to the security of the state, such as Uighur or Tibetan nationalists; casesalleging corruption of government and Party leaders; and specific cases linkedto incidents of social unrest. In such cases, ties with judicial systemofficials are by definition of little help; indeed, the very act of taking onsuch cases may destroy ties a lawyer has been working to build.

Lack of access to criminal suspects in detention

Criminal lawyers face immense obstacles in gainingpermission to visit their clients in detention, particularly in the pre-trialstage, before they have been formally charged. This situation is a concern bothin terms of the rights of defendants and the rights of defense attorneys, asdetailed below. Furthermore, suspects are vulnerable because of their lengthyincommunicado detention by law enforcement agencies, extraction of confessions underduress, ill-treatment, and torture. 

The right to access clients in detention

Under Chinese law, a criminal suspect can retain a lawyerafter his first interrogation by the investigative organs or from the day thedetention starts.[149]The right of a defense attorney to access accused persons in detention isguaranteed by theLaw on Lawyers andby the Criminal Procedure Law. One important exception in the CriminalProcedure Law concerns cases "involving state secrets," for which the hiring ofa lawyer is conditioned on approval by the investigating organs.[150] In those cases, thetime limits and procedures to gain access are set by specific regulationsissued jointly by the Supreme People's Court and six other ministries andcommittees with legal responsibilities (hereafter "the Joint Regulations"), complementedby institutional regulations of the Public Security Bureau, the Procuracy, andother institutions involved.[151]

The Joint Regulations provide that law enforcement agenciesmust comply with a valid visit request from a retained lawyer within 48 hoursin ordinary cases, and within five days if the cases involve organized crime orare "especially complicated."[152]In cases "involving state secrets" the right to visit is conditioned on theapproval of the investigation organs.[153]

Typical violations of the rights to access suspects documentedby lawyers and legal experts include: failing to inform the criminal suspect ofhis right to retain a lawyer, refusing or delaying his request to appoint alawyer, failing to inform the family of the detention and of their right toretain a lawyer on the behalf of their relative, failing to inform the lawyer designatedby the criminal suspect that he has been selected, denying permission for thelawyer to visit the suspect, and falsely claiming that the case involves statesecrets.

According to a Chinese study:

The impossibility for a lawyer who has been retained to seea criminal suspect remains the biggest and most often seen problem of criminaldefense lawyers. Legally endowed rights cannot be exercised.[154]

The few publicly available empirical studies seem to supportthis conclusion:

·A survey of police station detention cells in Beijing's Haidian districtindicated that lawyers were able to visit only 14.6% of detainees underinvestigation, even though 46.3% of the demands to see a lawyer from pre- andpost-trial detainees were met.[155]

·Another partial survey of 200 detainees in Beijing showed that 75.5%were never told by the investigators that they could request a lawyer. 17.3% ofthose who requested a lawyer were told that it was useless to do so, 12.2% werescolded by the investigators, and 12.2% were told to ask again later. According to the Procuracy, 57% of criminalsuspects have signed a retainer agreement with a lawyer.[156]

·A survey carried by the Beijing lawyers association showed that inone-third of the cases, lawyers were denied access to their client. "In most ofthese cases, the investigative organs refuse to organize access to the detaineewith or without reasons; when lawyers seek to obtain a retainer agreement,often there are able to do it "only through using extralegal methods [fei falü de shouduan] like makingrepresentations to the leaders or the higher departments.'"[157]

·One lawyer told Human Rights Watch that the ACLAhas complained repeatedly to the judicial authorities about the issue of access,attaching a compilation of actual cases in which access was denied, but none ofthese documents were made public. One such study, a survey carried out by theCommittee on Lawyers Rights of the Beijing Lawyers Association in 2006,indicates that 90% of the respondents "must repeatedly apply before gettingapproval for a visit, and most of the time cannot see their client within the48 hour limit."[158]

Restrictive practices

Many Chinese lawyers and legal experts claim that as amatter of course the Public Security Bureau often denies any contact with lawyersuntil at least after the investigation is completed, the defendant is formallycharged, and the case has been handed over to the prosecution. Only a fraction ofcriminal suspects are able to meet their counsel before they are charged. Insome cases, lawyers have been entirely unable to secure even a single meetingbefore the trial takes place.

When lawyers do manage to gain access to their clients,lawyers complain that visits are few, brief, and often conducted in thepresence of a representative of the investigation or in non-confidentialsettings.

To see his or her client, a lawyer is required to fill outan "application to access criminal suspect" and obtain approval from the PublicSecurity Bureau where the suspect is detained. Lawyers point out that internalPublic Security or Procuracy regulations, which sometimes vary from place toplace, expand on the exceptions set forth by the Criminal Procedure Law, oftenspecifying other cases where the application can be turned down, such as"especially complicated cases," or "cases related to organized crime."[159]These provisions contribute to law enforcement officials' perception that theycan deny visits outright.

Law enforcement agencies typically "give [only] pretexts orno reason at all" when denying or delaying lawyers' requests to visit theirclients.[160] According to one lawyer interviewed by HumanRights Watch:

The Public Security doesn't grant you access; they justdon't. They don't tell you why. You file your application [for a visit], andthat's it-no reply. What can you do? You have to know personally the courtofficials [to intercede], but sometimes it doesn't help. You have to look atthe local conditions. If the Public Security doesn't want it, the fact is that nobodycan force them.[161]

Judicial personnel also obstruct lawyers when they apply to visittheir clients. A news report quoted a lawyer complaining that "the thinglawyers hear most often when applying to see a client is the sentence: 'Thehandling person is not there.' And this 'handling person' can never be found."[162]

Another lawyer complained about delaying tactics used bysome courts.

Very often, the answer to a request for a visit is 'Pleasewait.' And you wait for one, two hours. There is no reason for it; this is justto wear you out. In the end they tell you that you can't see your client.[163]

Other typical excuses cited by a legal scholar include "theresponsible person is on a business trip, it may be a long time until he comesback," "the leaders are not there," and, "This is an economic case, thecircumstances exceptional."[164]

Legal scholars have pointed out that this phenomenon is morethan just a smattering of anecdotal complaints, but rather a deliberatepractice of obstructing the work of lawyers by the judicial institutions:

Many departments 'pass the ball around [tipi qiuI]': The Public Security Bureau saysthat the case is already with the Procuracy; the Procuracy that it has not yetbeen filed, or that it is already with the court. And so on and so forth. Theactual visit very seldom takes place within the fixed time limits. It takes atleast a week, most of the time a month, sometimes even longer to gain access toa suspect. Sometimes, the visit is denied, especially if it is the Procuracyitself that is conducting the investigation.[165]

Many lawyers have endured such ordeals. A lawyer from theestablished Liu Hule law firm in Yunnan province held the firm record ofvisiting the police station 22 times in 40 days, finally getting to see hisclient for a mere 30 minutes.[166]The lawyer for Hua Huiqi, an underground Christian, never gained access to hisclient, and Hua was even triedin camerawith Hua himself kept from entering the court chamber.[167]

Environmental activist Wu Hongli was visited by his lawyeronly after many months of detention. His wife reported that Wu had told her hehad been tortured in detention and that she saw torture marks on his body.[168]

Another reason frequently advanced by law enforcementagencies to deny lawyers permission to visit their client is that the suspectis not in criminal detention but in one of the various forms of "administrativedetention" such as "summoned for detention" (juchuan), bail (jubao houshen),or supervised residence (jianshi juzhu). These measures have their own specific maximumtime limits, but in practice are often manipulated to justify extendedincommunicado detention by the investigators.

Invoking state secrets as a pretext to deny accessto detained suspects

In politically sensitive cases and cases involving politicaloffenses such as subversion or crimes against state security, the policefrequently invoke the involvement of "state secrets" to deny attorney-clientmeetings. Recent cases include those of Zhou Heng, Lü Gengsong, and YanChunlin. 

The dissident Lü Gengsong was denied the right to hire alawyer of his choice by the Public Security because his case allegedly involvedstate secrets. A former instructor at the ZhejiangPoliceCollege, Lu was arrestedin August 2007 on suspicion of subverting state power and illegally holdingstate secrets after he wrote a series of articles about official corruption andthe need for political reforms. Lu's wife tried to hire two Beijing lawyers, but was notified in writingby the Xihu Public Security Bureau that Lu was not allowed to hire a lawyerbecause his case involved state secrets.[169]

She then tried to travel to Beijing, but was stopped near her home townby officers of the State Protection Bureau. After she finally managed to retainMo Shaoping and Ding Xingkui as lawyers, the same Public Security officialspressured her on two occasions to dismiss them and engage a local lawyer from Hangzhou. She stood firm.

Zhou Heng, a bookshop operator in Urumqi(Xinjiang region) and member of an underground Christian group, was deniedaccess to his lawyer for over six weeks by the Public Security Bureau onallegations that his case involved "state secrets." Zhou was arrested on August3, 2007, after a large shipment of bibles sent to him from overseas was seizedby the police. (Under Chinese law, bibles and religious material can only beprinted by domestic pre-approved printing presses.) He was held on suspicion ofillegal business activity and detained at the Public Security-run Xi Shandetention centre. His lawyer was finally able to meet him on September 14, buttwo police officers sat in on the meeting.[170]

Yang Chunlin, an activist representing a group of evictedfarmers in Jiamusi, Heilongjiang province, was denied anycontact with his lawyer after his arrest in July 2007. Yang was formallyarrested on suspicion of "subverting state power" in September 2007. Yang hadled a group of farmers to demonstrate in front of a government building,carrying banners with the slogan "We want human rights, not Olympic games."Yang's wife contacted a Beijinglawyer, Li Fangping, to defend him. The Public Security Bureau, who wasapparently monitoring her telephone, tried to dissuade her from hiring Li,reportedly telling her "If you hire a lawyer from Beijing the sentence will be heavier." Yang'slawyer applied to visit his client on September 7, 2007. He was informed thatpermission was denied because the case involved state secrets.[171]

Lawyers state that they have no effective recourse againstdenial of access to their client, and legal statutes provide no specificremedies aside from an administrative lawsuit under the administrativelitigation law. Human Rights Watchis aware of very few cases where such challenges have been successful. Somecourts have ruled that administrative acts emanating from the judicial powercannot be reviewed in administrative courts.[172]This leaves no recourse at all when law enforcement agencies do not comply witha request for a visit.

As detailed above, may dissidents, civil rights activists,religious figures, and defendants charged with vaguely worded state securityoffenses, such as subversion, state secrets, harming state security, orseparatism have been detained for lengthy periods of time, sometimes the entirepre-trial period, without access to a lawyer.

Lack of redress for violations of procedures

Chinese legal experts point to the disproportionate powerwielded by law enforcement agencies, which are easily able to flout proceduralrules,[173]in obtaining redress for procedural violations. Chen Guangzhong, a criminalprocedure law professor at China'sPolitics and LawUniversity, says that the root of theproblem is that "the Public Security has too much power":

The Court decides about guilt, the Procuracy about arrest,but it is the Public Security who decides about visits. The Court and the Procuracyare absolutely helpless with respect to access to lawyers.[174]

According to another Beijingcriminal lawyer, in many cases the Procuracy itself shies from challenging thePublic Security over forced confessions. If the Procuracy has doubts about theveracity of witness statements or confessions, it may try to invalidate them byfinding mistakes and ruling out the evidence on that basis rather than directlyrejecting the evidence because it was obtained under duress.

The newly revised Law on Lawyers, which will take effect onJune 1, 2008, has removed all exceptions to the right to meet with an accusedperson in detention, including for cases "involving state secrets." However, onlywhen the Criminal Procedure Law-which at present allows for such restrictions–issimilarly revised in the same sense will the change be effective.[175]After the revisions to the Law on Lawyers were promulgated in October 2007, lawyerMo Shaoping told the South China MorningPostthat he did not expect the revisions to effectively protect the rightsof lawyers: "A police officer could say no to a lawyer's request under theLawyers' Law, claiming that he is not governed by the industry-specific law,"Mr. Mo said. "Without changing other relevantlegislation, amending the Lawyers' Law alone cannot protect lawyers' rights."[176]

Above all, lawyers insist that the main obstacle to theircarrying out their duties remains the government's failure to implement theexisting rules.

Lack of access to case files

In criminal trials, the right and ability of the defense toaccess appropriate case information, files, and documents-including theevidence on which the prosecution is based-is a key component of due process and a fair trial. Chinese lawyers commonly rank "difficulties gainingaccess to court documents [yuejuan nan]"as one of the top three difficulties that the legal profession faces.

Limited rights under the law

Under Chinese law, lawyers enjoy the right to "consult, excerpt,photocopy and duplicate case material" during the prosecution and court stagesfrom the first day the case is filed.[177]Upon the filing of a written request, the People's Procuratorate must providethe defense counsel with a specified list of procedural documents, such asdetention and arrest warrants, search and seizure orders, lists of witnessaffidavits, and forensic diagnostics. Once the case is filed in court, thelawyer is also entitled to access "the material of the facts of the crime,"[178]the latter being defined not as all the evidence brought by the prosecution,but only as "the principal evidence."

The concept of "principal evidence[zhuyao zhengju]" is highlyconstraining, because it leaves judicial authorities with virtually untrammeleddiscretion in deciding what should be communicated to the defense counsel. Forinstance, lawyers often are provided not with actual testimonies of witnessesfrom whom depositions were taken by investigators, but only the list ofwitnesses interrogated. Key documents, such as the deposition of the criminalsuspect, full witness statements, and key physical evidence are not generally madeavailable.

Another serious burden on defense rights is that onlyevidence in support of the accusation is considered as "principal evidence." There is no obligation for the Procuracy tocommunicate potentially exculpatory evidence. This puts the defense at a significantdisadvantage. As one Chinese legal expert writes:

Using this system of 'communication of the principalevidence,' the procuracy…. simplyselects what supports the accusation, and according to them this cherry-pickedevidence unquestionably becomes the 'principal evidence.'[179]

Since evidence withheld from the defense is not precludedfrom being used at trial, even key evidence is at times kept from the defense lawyer,"so as to reserve the 'heavy artillery' for the hearing," as one lawyer put it.[180]

In essence, as Chinese study on lawyers concludes, lawyersare "powerless" in accessing substantive documents:

It is not hard to fathom, that at any given stage, the maindocuments that the lawyer can check are procedural documents. He has no meansto acquaint himself fully with the substantive ones. This results in the lawyerbasically being powerless to fully grasp the details of the case.[181]

Routine procedural violations

Lawyers also complain of other difficulties in accessingcase files, even when those difficulties explicitly violate clearly-stated rights.The prosecution often disregards time limits. "The law says that the prosecutionhas a maximum of five days to grant access to the case file, but in general theminimum is one week, most often one month, some times even more," according toone lawyer interviewed by Human Rights Watch.[182] At times, the prosecution sometimesjustifies its refusal to let lawyers access the case files by claiming that thecase involves "other suspects that have escaped," or "state secrets," or thatthe case is "especially complicated." At other times, the applications for theconsultation of the case file are simply left unanswered.

Personnel of the Procuracy and courts also frustrate lawyersthrough tactics that run counter to their obligation to "facilitate" lawyersaccess to case documentation, as set by court regulations. The tactics include:impractical locations for reading the documents (a lawyer reported that he hadonce to bring a flashlight because the light bulbs in the windowless room weredead), poorly maintained photocopy equipment and exorbitant photocopyingcharges, arbitrary delays, and hostile behavior of court employees. Lawyers believethat many of these obstacles are intended to remind them of their low status withinthe larger legal system. 

Lawyers have no effective remedies against these obstructions.A typical assessment made by lawyers is that their procedural "rights" are empty:"Despite the guarantee of the lawyer's right to access documents, because thereis no operative definition of this right, it remains without any force."[183]

One lawyer told Human Rights Watch:

The judicial organs will only give you what they want, andit is not uncommon to see the real evidence only on the day of the trial. Thisis like a tiger blocking the road. Chinese lawyers are powerless.[184]

Lawyers agree that they face even greater hurdles when theyrepresent sensitive political cases.

If the case is politically sensitive, everything is decidedby higher-level authorities: the court officials have to ask for instructionsbefore they give you access to the court file, they won't dare to take the responsibilitythemselves. They tell you 'this is a special case, we are not in a position todecide'.[185]

Court officials also delay access on small pretexts. Forinstance, court personnel reportedly told lawyers for rights activist GuoFeixiong they could not access his court files because they could not find thekey to the file cabinet. Guo had been formally indicted on charges of alleged"illegal business activities" on May 15, 2007, but the court delayed access tothe case files until May 23. Guo's lawyers, Mo Shaoping and Hu Xiao, flew from Beijing to Guangzhoufor the appointment. But on arrival, personnel told them that a "technicalissue" made it impossible to see the file: the court official with the only keyto the file cabinet was away and would not return until the next afternoon.[186] A few days later,Guo's lawyer finally obtained the file, although it contained none of thedepositions made by Guo or his allegations that he had been tortured.

The Chinese government has acknowledged that lawyers face unreasonableobstructions in accessing court documents, and have urged judicial authoritiesto address the problem. In March 2006, for instance, the president of theSupreme People's Court, Xiao Yang, reiterated that "[the judicial authorities]must establish conditions to provide necessary convenience for lawyers toconsult, summarize, photocopy, and duplicate case material."[187]

Intimidation of witnesses and lack of access to evidence 

The ability of Chinese lawyers to gather evidence eitherindependently or through the courts, to produce and examine witnesses, and toseek judicial redress when their rights are violated in the course of suchattempts is sharply limited by statute and by practice. These limitations areparticularly severe in criminal cases, as well as in cases deemed sensitive bythe authorities, such as those alleging human rights violations. Genericallytermed as "difficulties in gathering/collecting evidence [shou zheng nan]," these limitations feature as one of the "threetop difficulties [san lao nan, san da nan]"lawyers face, along with access to clients in detention and to case filesdetailed above. 

Most testimonies in Chinese courts are in the form of writtenaffidavits. According to a comprehensive survey carried in 2004, fewer than 1percent of witnesses who give depositions before trial subsequently appear incourt to testify.[188]This puts the defense at a significant disadvantage, as they have no ability toexamine prosecution witnesses or produce their own witnesses. They are notentitled to attend depositions.

"It is usual for the PublicSecurity to threaten witnesses," one criminal lawyer told Human Rights Watch. "Theysay: 'We already have your testimony … if you change it, we will accuse you ofperjury and arrest you.'"[189]

Chinese and foreign legal scholars who have examined how toimprove witness examination procedures point to the courts' lack of financialresources, overwork, and poor coordination with other officials, particularlypolice, as key constraints.[190]But lawyers contend that this situation is made worse by the obstacles theyface in taking depositions effectively or without interference, especially inthe light of other existing restrictions, such as limited access to case files.

Many lawyers told Human Rights Watchthat the police often interfere with their activities and intimidate plaintiffsand witnesses.

Because the Public Security often 'gives pressure' towitnesses, it is very hard to interview them. They are afraid…. When you go toa small town and the police are following you all the time, what kind oftestimonies can you get?[191]

Sometimes, lawyers are forcibly kept away or sent back bythe local authorities.

We went to this rural place to take the deposition offorcibly evicted farmers… but the Public Security stopped us at the restaurantwhere we were having lunch. They said that this matter had already beeninvestigated…. A few individuals were 'creating trouble,' and for our ownsecurity [the police] could not let us go around freely…. They drove us back tothe nearby township and stayed with us until we boarded the train back.[192]

Another common problem is impunity for acts of intimidationby non-state agents who appear to be acting at the behest of local powerholders. A lawyer told Human Rights Watch about a trip undertaken to investigatea dispute over compensation for resettlement in Sichuan province.

The whole time we were interviewing the residents [whoclaimed they were owned compensation after having been resettled] unidentifiedindividuals followed us.… They harassed us, blocking our way, making snide remarks,trying to dissuade residents from talking to us … We complained to the policebut they didn't do anything.[193]

Many lawyers point out that such hurdles are inevitable:

These are lawyers' 'professional risks'. In China,this is the way it is…. We have our techniques. For instance, when we goinvestigate a particular place, we never stay in a hotel on site but spend thenight in a neighboring town…. Also, we never go alone. This way, it is safer.

As illustrated throughout this report, these techniques arefar from being foolproof. When two Guangzhoulawyers retained by a group of Taishi villagers in 2005 attempted toinvestigate the situation there, they were attacked by a group of unidentified menand one of them was slightly injured. Their law firm unilaterally decided toend their representation of the villagers.[194]

In another case, Ren Hua, a well-known lawyer from Beijing and author of a public appeal to the NationalPeople's Congress and the State Council to abandon the petitioning system of"Letters and Visits," went missing for three days after an attack by thugs in Hunan province in August2007.

Ren had been conducting investigations with three otherpersons for two days in Jiangshui township, where some residents were accusingthe local authorities of embezzlement, forced eviction, and official collusionwith businessmen. On August 5, 2007, unidentified thugs burst into their hotelroom, in the nearby city of Yongzhou.Ren sent a text message to friends in Beijingdescribing the incident and mentioning that two people were injured, and then disappearedfor three days. The local Public Security Bureau denied any knowledge of hiswhereabouts to relatives and journalists fromRadio Free Asia. Although Ren never spoke publicly about theincident, other lawyers told overseas media that he had been detained by thugsacting at the behest of local officials wanting to prevent scrutiny of theiradministration.[195]

Lawyers also say that they often face great difficulties ingathering physical and documentary evidence. The Law on Lawyers stipulates ingeneral terms that lawyers have the right to request evidence from work units(the Chinese term for public and private bodies) or individuals.[196]The extent of this right is detailed in the Criminal Procedure Lawand various regulations andinterpretations issued by the judicial authorities.[197]

In criminal matters, the right of lawyers to "collectevidence," including witness testimonies and depositions, is conditioned onprior approval by the prosecution and agreement by the institution orindividual to which the inquiry is directed. This system of "double permission[shuangchong xuke]" mandates that thedefense submit a written application to the prosecution or the court to approvediscovery procedures,[198]such as obtaining official records from public or private institutions andindividuals, taking testimonies, producing witnesses in court, and obtainingsubpoenas for witnesses and documentary evidence.[199]

Lawyers also complain that judicial authorities typicallyignore or frustrate their efforts to collect information and evidence duringthe pre-trial stage. One lawyer from Hainantold Human Rights Watch:

Collecting evidence is an impossible task for Chinese lawyers.Thegongjianfa's [judicial organs'] mentalityis still that we are the 'enemy,' so they will not cooperate. You can presentyour own evidence but the court will just ignore it, saying it is not valid.[200]

Numerous professional publications by lawyers and legalexperts echo the systemic problems encountered in gathering evidence. A typicalarticle published inChina Lawyers,published by the All-China Lawyers Association (ACLA), deplores lawyers'inability to collect information:

Under a situation where it is impossible to get appropriaterelief from the judiciary, lawyers are powerless in trying to conduct normalinvestigation and collect evidence. This translates into difficulties indefending plaintiffs.[201]

Despite repeated promises by the government since theenactment of the Law on Lawyers in 1996 that the judicial authorities wouldimprove their "cooperation" with lawyers, specific procuracy and courtregulations make clear that those authorities enjoy almost unfettereddiscretion in granting or refusing lawyers' applications for discovery ofevidence or examination of witnesses. One provision in the People's CourtRegulations, for instance, indicates that courts are to consent to a lawyer'sdemand "if the court believes it is indeed necessary [renwei queyou biyao de]." There are no further provisionsexplaining what criteria courts are to apply in determining whether theevidence is "necessary."

According to a Beijingcriminal lawyer, courts often resort to unmotivated refusals:

Whether it is the procuracy or the court, the answer isalways the same: 'We believe there is no necessity.' There is nothing you cando about it. It's discouraging.[202]

Even when the judicial authorities agree to a lawyer'srequest to obtain evidence from a third party, the absence of explicit legalprovisions relating to the disclosure of information gives ample ground forrefusal to cooperate from those who have been asked to provide information.According to a Shanghailawyer:

When lawyers direct their inquiries to an officialministry, the relevant departments put up all sorts of obstacles such as'refusal on the grounds that they give material to the procuracy, not to lawyers.'[203]

The difficulties that lawyers and their clients have inobtaining hospital records are an illustration of the problem. In Beijing, lawyersrepresenting HIV-AIDS patients, and patients who had been subjected to trialdrugs without their informed consent, faced enormous difficulties in obtainingsimple information such as patient records, financial documents, andadministrative records from the hospital:

The least you can say is that they were not forthcoming. Weasked for certain documents, such as consent forms and they refused…. Wepressed them, and finally they provided them to us. But then we realized theywere forgeries: the dates were wrong.[204]

Lawyers say that it is difficultand time consuming to try to obtain a court order when third parties are notcooperating, and futile when state organs are concerned.

The October 2007 revisions of the Law on Lawyers indicatesome willingness to strengthen the right of lawyers to access case documents,in particular specifying that the work units and individual "ought to cooperate[yindang yuyi peihe]." But theaccessible information remains limited to the "principal evidence" as decidedby the prosecution, and domestic legal experts insist that only a revision ofthe Criminal Procedure Law could effectively improve access to caseinformation. 

Restrictions on free expression and use of media by lawyers

The ability of lawyers to obtain justice for their clientsis constrained by limits on freedom of expression and information.[205] While the centralgovernment makes use of media exposure and "public opinion supervision [yulun jiandu]" to promote its policiesand keep local officials' corruption and abuses of power in check, it maintainsthat the media should not be allowed to become a platform for criticizing oropposing CCP rule, which in turn may result in limiting the exposition ofofficial wrongdoing.

Academics are now mostly free to discuss any legal topic inacademic settings, although publishing in newspapers or journals remainstightly controlled and some outspoken advocates of legal reform have beenblacklisted or temporarily suspended from teaching.[206] An increasingnumber of controversial cases are debated in the media, and lawyers themselvesoften make the media part of their overall litigation or defense strategy.[207] Widening internetaccess has also eroded the government's traditional monopoly over the means ofpublication.

At the same time, Party authorities routinely censor thecoverage of cases that may embarrass the authorities, typically stating thatthe case could have "a negative influence on public sentiment" or could be"detrimental to social stability."

Many cases that expose wrongdoing by local officials orlocal governments are likely to be suppressed in the local media, which areunder the supervision and control of the local authorities (through the News PublishingBureau, the Propaganda Department, and various Party committees). But in somecases, the influence of these local power-holders does not extend to media fromother provinces or to national media. Chinese journalists are well aware ofthis and the practice of "reporting from another location [yidi baodao]"-exposing a problem in one province in the media ofanother province-is a common technique to circumvent local censorship.

Numerous national television programs report on cases oflocal official wrongdoings that have been brought successfully to court, oftenthrough long tribulations. But according to journalists, a significantproportion of these investigations are also never broadcast because either theyare considered too sensitive by the government or because the local authoritieshave been able to convince the central authorities not to air them. According to a journalist working for a domesticnewspaper, "once the Propaganda Department or the News Publishing Bureau, forwhatever reason, has issued an edict censoring a particular subject, it will bevery difficult to release it. No one will want to take the risk to report aboutit."[208]

When reporting on a case is banned by local media, lawyerssometimes turn to overseas Chinese media and to the foreign press in the hopeof overcoming resistance and protecting themselves by gaining a degree ofnotoriety. But such international exposure can also turn into a liability forthe lawyers, and their clients, and many lawyers have been warned repeatedlynot to accept or conduct interviews with foreign media. In addition, a numberof local regulations governing the administration of lawyers explicitly limittheir right to talk to domestic and foreign media.[209]

The case of Teng Biao, a lawyer at the Beijing Huayi Lawfirm and a lecturer at the University of Politics and Law, isemblematic of the risks run by lawyers who campaign publicly for their causes.

On March 6, 2008, at around 8.30 p.m., Teng was abducted byplainclothes policemen as he was coming home. He was restrained, bundled intoan unmarked car, blindfolded, and brought to a secret location where he waskept for 40 hours. Police told him he had been detained because of articles hehad written on protecting the rights of citizens, including an open letter tothe government penned with fellow activist Hu Jia,[210] who was sentencedto three years' imprisonment a few weeks later. The police threatened to have Tengdisbarred, dismissed from his university position, and arrested on subversioncharges.[211]

"I was taken away on Thursday night. They shoved me into acar and put a bag over my head," Teng told Agence France Presse after hisrelease.[212]"They didn't show me any identification, but they said that they were from theBeijing Public Security Bureau."[213]

"They told me not to talk to foreign journalists," Tengsaid. "I can't tell you exactly what they said. They told me that I shouldn'tspeak. There is a lot of pressure on me. There is no law that gives them theright to silence me, it is only their threats."[214]

A formervisitingscholar at YaleUniversity's law school, Teng had received the French Republic Awardfor Human Rights in December 2007. In April 2008, Teng co-signed an appeal by28 lawyers offering legal assistance to Tibetan protesters who had reportedlybeen detained after the uprising in Lhasa.The appeal was censored on all internet sites in China.

IX. Control Over Lawyers' Licenses

 Lawyers' licensesmust be registered yearly. Unregistered licenses are not valid.

-Article 12 of the Ministry of Justice's "Methods for theManagement of Lawyers Professional Licenses"

The first warning is that someone at the Judicial Bureauwill give you a simple phone call to invite you to "have a chat."

-W.Z., a Shanghailawyer, September 2007

Lawyers interviewed by Human Rights Watch said that the risk of suspension or withdrawalof their professional license was their greatest concern when handling cases likelyto trigger official retaliation. This risk, they say, is a powerful deterrent keepinglawyers from taking on such cases.

In effect, Chinese lawyers must fulfill four conditions topractice: (1) hold a personal professional lawyer's license, (2) each year"register [zhuce]" this license withthe local bureau of the Ministry of Justice, (3) be a member of the locallawyers association (which makes them automatically a member of the All-ChinaLawyers Association), and (4) be employed by a registered law firm.[215]

Aside from the formal suspension of a lawyer's ownprofessional license, lawyers can be disqualified and barred from practicethrough denial of the mandatory annual registration of licenses, loss ofmembership in the local bar association, or termination of their employmentwith a registered firm. 

All the lawyers interviewed by Human Rights Watch acknowledged receiving regular "pressure [yali]" from judicial bureau officials,who warn them about unspecified "repercussions" of their work.

A number of human rights lawyers and lawyers with humanrights cases against state authorities have been disbarred or otherwise professionallydisqualified in recent years. This includes Li Jianqiang, whose annual registrationwas denied without any written justification; Yang Zaixin, Zhang Jiankang, and TangJingling, whose respective employers, under pressure from the local judicialbureaus, did not endorse their application for re-registration; and GaoZhisheng, Guo Guoting, and Zheng Enchong, whose personal professional licenseswere suspended.

For judicial authorities the most expedient way todisqualify a lawyer is to deny his re-registration at the end of the year,because it does not entail the procedures required for formal suspension orwithdrawal. Although the year-end procedure is termed "registration [zhuce]," for all intents and purposes itis an annual licensing process in which the judicial authorities are the solearbiter of whether the registration will be granted or denied.[216]

One lawyer told Human Rights Watch that the annualre-registration was a sufficient deterrent for many in the legal profession torefrain from engaging in sensitive cases "such as cases that can influencesociety, cases against government officials, or mass cases":

The first warning is that someone at the Judicial Bureauwill give you a simple phone call to invite you to 'have a chat.' There is nothingofficial in this, but lawyers get the message. It's a threat.[217]

To circumvent this ever-present risk, lawyers say they frequentlychoose to handle cases that carry a risk of official retribution outside of thearea where they are officially registered. This effectively minimizes the riskof a retaliatory suspension, as local authorities in a different province or asmaller jurisdiction have little power over judicial bureaus situatedelsewhere, in particular in larger cities like Beijing,Shanghai, or Guangzhou.

Still, lawyers say they this "outsider tactic" is of littlehelp if one becomes the subject of attention of the central authorities: 

"Those with good relationships with judicial authoritieshave nothing to fear, but those who take sensitive cases have to take acalculated risk," one lawyer from Beijingtold Human Rights Watch.[218]"Most lawyers just don't want to take this risk."

The disqualification of lawyers who handle sensitive casesalso sends a message to the rest of the legal profession.

Manipulation of the annual registration requirement

The requirement for lawyers to "register" annually is notstipulated in the Law on Lawyers, but comes from a simple regulation issued inNovember 1996 by Ministry of Justice, "Methods for the Management of LawyersProfessional Licenses."[219]

According to this regulation, a lawyer's application forrenewal must be submitted to the judicial bureaus by the law firm for which he works.The applicant must submit a number of documents describing his work during theyear, including proof of attendance at the mandatory training courses by the judicialbureaus, which combine professional training with some politicalindoctrination,[220]and a summary of the work he did over the past year. The local judicial bureauthen "issues a vetting opinion [shenchayijian]" before "transmitting it to the higher level" for registration. Thisprocess gives great discretion to the judicial bureau to decide whether to grantthe re-registration. The standards upon which the "examination opinion" isbased are not publicly available.

Some domestic law experts have argued that the system ofannual registration is necessary in order to ensure that members of the legalprofession continue to attend the annual training needed to keep up in arapidly evolving legal system. However, there is evidence that the registrationis used as a way to exert influence over lawyers and make them dependent on theParty and government authorities.

For many lawyers, particularly in large cities like Beijing and Shanghai,this annual re-registration procedure can be a simple formality. But in smallerplaces, it is a far greater concern. The lines of authority between localpower-holders or Party committees and the local bureaucracy are much shorter,making it easier to retaliate against a lawyer by instructing the judicialbureau not to grant the annual registration.

Denial of re-registration

Li Jianqiang, a lawyer from the Shandong Guanhua law firmwho had defended a string of human rights and political cases, was deniedrenewal of his license registration by the Shandong Provincial Judicial Bureauin June 2007.

Li, a graduate of the Chinese Literature Department ofPeople's University and of the Economics Department of the University of Politicsand Law, started his criminal lawyer career in 1994. He has representedwriters, journalists, dissidents, and members of underground churches,including the writer Yang Tianshui, the poet Li Hong, the activist and artistYan Zhengxue, and the dissident Chi Jianwei. His license had already been suspendedonce by the authorities in November 2003, but was reinstated later. Li also defendedChen Shuqing, a member of the banned China Democratic Party, who was chargedwith the crime of "subversion of state power."

In November 2006, Li published a short report on theinternet, "The situation of freedom of religion and freedom of expression in Chinain 2006," which documented a series of violations, including those at issue in certaincases he had defended, in very candid language:[221]

As the year 2006 ends, the general situation for freedom ofexpression and freedom of religion in China has deteriorated. Within ayear, there has been a series of arrests and trials of liberal writers,journalists, rights defenders, Christians and religious believers. Importantcases included the sentencing in Nanjing of the writer Yang Tianshui, who wassentenced to 12 years, the rights defender Chen Guangcheng, to four years andthree months, the Hebei writer Guo Qizhen, to four years, the journalist fromGuizhou Li Yuanlong to two years, the Shandong writer Li Jianping to two years,the Hunan journalist Yang Xiaoqing [though he] avoided criminal punishment, thewriter Li Zhangqing to three years.

In the second part of the year, there was also the arrestof Gao Zhisheng, Guo Feixiong, Zhou Zhirong, Zhang Jianhong, Cheng Shuqing, YanZhengxue, Chi Jianwei, and other rights defense lawyers, liberal writers, andcivil rights volunteers. At least 2,000 underground Christians have beendetained, among whom a few tens were tried or sentenced toreeducation-through-labor. The general human rights situation in Chinahas deteriorated, and religious rights have also been severely repressed.[222]

The judicial bureau did not provide an oral or written explanationfor the 2007 refusal to re-register Li, but he attributed the sanction to hiswork on human rights cases:

[The bureau] didn't even provide a reason; they just didn'trenew the registration of my license for the coming year. I have defended manydissidents; maybe some people are not very happy about it. I can imagine that at a certain point, theauthorities just don't register you anymore.[223]

After Li lost the ability to practice, he explained that theShandong Judicial Bureau's refusal to provide him with a written explanationfor refusing to extend his license made it impossible for him to appeal thedecision.

I don't believe I can appeal to higher level because theydid not provide a written justification for the refusal of my application. Mineis not a situation where one receives a penalty according to laws andregulations because of a particular transgression-instead, the judicial bureaudoesn't give you any reason, they just don't issue you the registrationlicense! There is no process, and this contravenes the rules governing theadministration of lawyers.[224]

Neither the Shandong Lawyers Association nor the All-ChinaLawyers Association volunteered to take Li's case to the judicial authorities.

Indirect denial of registration: Pressures on law firms

In addition to directly denyingre-registration, in some cases the authorities have exerted pressure on local barassociations not to register a lawyer, or on law firms to dismiss ordisassociate from a lawyer, to ensure that the lawyer in question cannotfulfill the conditions for re-registration of his or her license to practice.

Lawyer Zhang Jiankang, who had represented farmers in a highprofile land dispute in Nanhai, Guangdong Province, was deniedre-registration in March 2007.[225] Under pressure from the Shaanxi JudicialBureau, Zhang's law firm declined to endorse his membership application to thelocal lawyers association, effectively depriving him of his lawyer's license.[226]According to Zhang, the Xi'an Judicial Bureau threatened to close the Diyi lawfirm if it supported Zhang's membership.

Zhang had been warned earlier by the judicial authorities tostop getting involved in controversial cases. In May 2006, he was deniedpermission to travel to the United States for a conference. Zhang provided thefollowing account of his exchange with an officer at the Public Security Bureauwho had authority over the issuance of passports:

Official: "You can not apply for a passport. The JiangxiProvince State Protection Bureau has a case on you, your acts have violatedState security."

Zhang: "Can you be more concrete?"

Official: "I cannot be more precise. This is not myresponsibility to inform you of the circumstances. You can take it up with theJiangxi State Protection Bureau; if they drop your case, you can get apassport."[227]

Officers from the State Protection Bureau warned him that heshould abandon all controversial cases such as the land dispute in Nanhai, stopgiving interviews to the media and stop writing articles critical of thegovernment posted on overseas websites.[228]

Despite these warnings Zhang did not cease his activities,and argued in articles posted on overseas websites that the interference fromthe judicial authorities was illegitimate.[229] InOctober 2006, Zhang wrote:

Not to accept interviews, not to say a word, this is likebeing a dead person. I don't care where request for interviews come from, Ihave the right to be interviewed.[230]

Zhang also continued his involvement in the Nanhai case. InJanuary 2007, he was informed by his law firm that they would not register himat the local bar. According to Zhang, his firm was sympathetic but felt theycould not risk alienating the judicial authorities: "You are within your rights,but we don't have a choice. If you file a complaint, we will cooperate."[231]

Zhang's law firm subsequently tried to negotiate with theprovincial judicial authorities that he be allowed to finish ongoing cases thathe had been handling. In April 2006, the firm made a written demand to theXi'an Judicial Bureau to ask permission for Zhang to travel to neighboring Jiangsu province todefend a criminal case he had started to work on a few months before, in June2006. The bureau responded by calling the law firm two days later, stating thatZhang was not authorized to handle any case, old or new, and that he was tocease immediately handling cases with which he had been entrusted previously.[232]Zhang later decided to travel to Jiangsunevertheless, but was unable to represent his client.[233]

In April 2007, seven protesters from the Nanhai land disputewere given sentences ranging from two-and-a-half to four years' imprisonment oncharges of extortion and blackmail. Only one of them was represented by alawyer at the trial. The verdicts were upheld by the intermediate court inOctober 2007. 

Politically-motivated disbarment and sanctions against lawyers

The formal suspension of professional licenses is rarer buthas nevertheless been used in the case of particularly outspoken lawyers handlingcontentious human rights cases and political dissidents. Prominent examplesinclude Gao Zhisheng, who was suspended in December 2006, Guo Guoting, who was suspendedin March 2005, and Zheng Enchong, who was disbarred in 2001.[234] 

Aside from the requirement to re-register yearly, the Law onLawyers sets forth a number of specific irregularities for which the judicialbureau can impose a temporary suspension ranging from three months to one year.Many of the proscribed actions are non-controversial-such as the prohibitionagainst engaging in corrupt practices with court personnel-but the law can alsobe easily manipulated, given the inclusion of clauses against "inciting andinstigating the adoption by plaintiffs of illegal means such as creating publicdisturbances and harming public order to solve disputes" (Article 39-7), which deterslawyers from representing many protesters, and the exclusion from immunity of "speechthat threatens national security" (Article 37) made by lawyers in court.[235]

The Ministry of Justice's own regulations, the "Methodsregarding the punishment of illegal acts by lawyers and law firms," expandedgreatly on the provisions of the Law onLawyers before its revision in October 2007,[236] andincludes a number of vaguely definedclauses that could easily be abused for politically-motivated disbarment orsuspension. Those include "using media and publicity or other means to carryout untrue or unsuitable publicity" (Article 9-11); "other acts for which apenalty is appropriate" (Article 9-23); and "other illegal acts, that seriouslydamage the image of the legal profession" (Article 10-3).[237]

Article 9 of the same regulations allows for law firms to betemporarily suspended for three months to a year if they fail to promptly register"changes regarding the name, charter, responsible persons, partners, addressand partnership agreement." This last clause was used by the BeijingMunicipality Judicial Bureau to justify the suspension of Gao Zhisheng's lawfirm, the Shengzhi law firm, before his subsequent arrest and sentencing undersubversion charges.

Gao Zhisheng

On October 18, 2006, Gao issued an open letter addressed to China'stop leaders, Hu Jintao and Wen Jiabao, denouncing the widespread use of tortureagainst Falun Gong practitioners. 

Six days after, as he was working on a case in the distant region of Xinjiang, Gao received a call from thevice-head of the Beijing Judicial Bureau. The official asked him to withdrawhis letter or face unspecified consequences. "If you don't take it back, Idon't need to say what this implies…," Gao reported having been told. 

On November 3, upon his return to Beijing, Gao was summoned to the judicialbureau for a "group discussion" during which he was asked to drop all sensitivecases and to stop talking to foreign media. The next day, a judicial bureauinvestigation team went to the Shenzhi law firm, taking records andinterrogating Gao's personal assistant.

On November 4, the Beijing Judicial Bureau told Gao that hislaw firm was being suspended for a year "following the results of theinvestigation." The two reasons for the temporary suspension, effective 15 dayslater, were a "failure to register in time the change of address of the lawfirm" and "violat[ing] the professional ethics of the legal profession."[238]

Gao said that the suspension was retaliation for his letterand his refusal to drop the sensitive cases. He also disputed the veracity ofboth charges, saying that his staff had actually tried repeatedly to registerthe change of address of the practice, but that the Judicial Bureau would notprocess the registration, nor acknowledge its refusal to process it.

Gao also disputed the basis of the charge of having violatedprofessional ethics, which stemmed from the fact that a legal documentsubmitted by his firm bore the signature of the lawyer of another practice,Tang Jingling. The document was a petition to visit the rights activist GuoFeixiong, who was at the time in police custody in Guangzhou.[239]

A few weeks later, the Beijing Judicial Bureau revoked Gao'spersonal law license, and he was instructed to turn it over or have itconfiscated by force.[240]The director of the Lawyers and Notaries department of the Beijing Judicial Bureauconfirmed toAssociated Press thatGao's license had been revoked, but refused to give further details, statingonly that the decisions had been made "some time ago."[241]

Li Heping, one of the lawyers who had banded together todefend Gao, reviewed the bureau's notification and said that the cancellationviolated the law. Gao stated at the time that he would appeal the decision buthe was arrested a few weeks later.

Guo Guoting

Guo Guoting, director of the Tianyi law firm in Shanghai, had practiced maritimelaw for almost twenty years. A guest professor at the law institute of WuhanUniversity, he had published numerous books and articles on commercial andmaritime law, and was a member of the National Arbitration Committee onMaritime Affairs.

In 2003, he decided to help a former classmate, ZengEnchong, a former lawyer who was fighting a legal battle on the behalf offorcibly evicted residents in Shanghai.Zeng had been disbarred in 2001 after he leveled accusations of collusionbetween developers and the Shanghaimunicipality. Despite his disbarment, he continued to work on behalf of residents,filing multiple lawsuits. He was arrested in June 2003 and charged with a statesecrets offense for passing an article from an internal publication ofXinhuanews agency to an overseas humanrights organization.

Almost immediately after Zeng's arrest, Guo started toreceive warnings from the Shanghaijudicial authorities telling him to drop Zeng's case. "The authorities calledme in 18 times to tell me to abandon this case," he told theNew York Times at the time.[242]"'It's not a legal matter, it's a political matter,' they'd say. Finally, amidlevel cadre warned me, 'If you pursue this case any further, whatever comesof it will be entirely your own responsibility.'"[243]

Guo refused to yield to these pressures, and continued todefend Zeng and others arrested forposting articles online. Shi Tao was accused of "illegally providing statesecrets abroad" for posting the content of a circular from the Propaganda Departmentrelated to the June 4th anniversary of the 1989 Tian'anmen crackdown.He had been arrested in November 2004 and his trial was scheduled for March2005. Zhang Lin, a dissident writer, had been imprisoned since January 2005 forarticles he posted on overseas web sites related to the Falun Gong movement andcalling for political reform. Zhang faced state security charges, with a trialdue in August 2005. Huang Jinqiu, an internet essayist, had been arrested inSeptember 2003 and sentenced in September 2004 to 12-year imprisonment forsubversion and writing "reactionary articles."[244]

Guo had mounted vigorous challenges on all three cases, bothon procedural and freedom of expression grounds, and faced growing pressurefrom the Shanghaigovernment to drop these controversial cases. On February 22, 2005, he wasbarred from a scheduled visit to Zhang Lin. The next day, over a dozenofficials from the Shanghai Judicial Bureau raided Guo's firm. They confiscatedhis license, having pretended that they needed to copy his license number, andtook away his computer. On March 1, the Shanghai Judicial Bureau issued Guo aone-year suspension. Guo stated that it was an "unjustified officialpunishment" and announced his intention to challenge the suspension at thehearing on March 4.   

To prevent Guo's supporters from attending the hearing, theShanghai Judicial Bureau changed the place of the hearing at the last minute toanother location. Police then prevented fellow lawyers from entering the hearingchamber by claiming that it was already "full."

According to Guo's lawyer, Wei Rujiu, the hearing was perfunctory.The judicial authorities accused Guo of having written articles that "slanderedthe Communist Party" and "violated the four cardinal principles" of theConstitution.[245] Representatives from the Shanghai JudicialBureau submitted Guo's information, including Guo's defense statement, articleshe had written, and media interviews he had given.[246] "Guo admitted to being the author of thearticles, but did not admit that the content was attacking the Party andsocialism," Wei subsequently told overseas media.[247]

Immediately after the hearing the police put Guo under housearrest. Uniformed and plainclothes police monitored him around the clock,confiscated his mobile phone, wiretapped his home phone and prohibited him fromtalking to the media.[248]Guo was prevented from attending the trial of Shi Tao, for whom he had been themain defense lawyer.

In late May 2005, the Shanghaiauthorities allowed Guo Guoting to leave to Canada, where he now lives inexile. His clients were all convicted and sentenced. Shi Tao was secretly triedby the Changsha Intermediate Courton May 11 and sentenced to 10 years' imprisonment to be followed by a two-yeardeprivation of political rights for the crime of "illegally providing statesecret overseas." Zhang Lin was sentenced to five years in prison in July2005 on charges of "harming national security." Huang Jinqiu was denied appealand is serving his 12-year term in Pukou Prison, near Nanjing.

Although the law specifies that lawyers subjected to asuspension or withdrawal of license can technically challenge the decision by"applying for administrative reconsideration" or "bringing an administrativelawsuit," such a challenge does not suspend the sanction and in practice isineffective given the judicial authorities' tight control over the courts.

Human Rights Watchis not aware of any instances in which a lawyer has successfully challenged asuspension or withdrawal penalty through the courts.

Statistics about the yearly number of suspensions anddisbarments are not readily available. Local judicial bureaus occasionally publishreports that give details about the number of lawyers they have sanctioned overthe past year or during one of the recurrent "rectification" campaigns, amongwhich suspensions or withdrawal of licenses are featured, but the data is notcomprehensive. Nationwide figures are unavailable or unreliable.[249]

Some estimate that 100-200 lawyers are suspended every yearin China;others believe the figure is higher. Given the widely acknowledged problems offraud and corruption that plague the legal profession, it is likely that manysuch sanctions are legitimate, the consequence of actual infractions committedby lawyers or law firms.[250]

But there is also strong evidence, much of which is detailedabove, that the Chinese authorities use suspensions and denial of registration toretaliate against or prevent lawyers from exposing cases that may causeembarrassment to the authorities, such as embezzlement, corruption, abuses ofpower, and human rights violations committed by state and Party officials. Thesuspension and disbarment of a number of outspoken lawyers for their defense ofvictims of human rights abuses deters most lawyers from engaging in such cases.The net result is that it is much more difficult for ordinary Chinese citizensto seek justice through the courts-contrary to the government's insistence thatit upholds the rule of law.

X. Recommendations

To the Chinesegovernment

a. Release and reinstate lawyers illegitimatelysanctioned

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

·Reinstate the professional licenses of lawyerswho have been suspended or whose registration has been denied for politicalreasons.

b. Improve access to justice and sanction officialarbitrariness

·Repeal local or administrative rules andregulations and prohibit the enactment of new rules and regulations that imposeadditional limitations on the rights of lawyers beyond those defined innational law or regulations. 

·Ensure access to justice for victims of abusesof power by upholding existing laws and prosecuting officials who obstruct thecourse of justice. 

·Remove obstructions-including embedded Party andadministrative interference-that prevent lawyers from effectively andvigorously representing criminal defendants and other clients in contentiouscases, including those alleging official abuse.

·Provide for more effective and automatic administrativesanctions for judicial officials who arbitrarily deny attorneys' registrationand Public Security Bureau officials who block access to justice. 

c. Grant the legal profession independence

·Ensure that bar associations are fullyindependent and self-governing so that they can adequately represent theinterests of the legal profession and actively defend lawyers facingillegitimate official sanctions. Abolish statutes stipulating that judicialbureaus exercise "supervision and guidance" of bar associations. 

·Allow for free elections of the executive bodiesof bar associations at the local and national level and ensure that theyexercise their functions without external interference.

·Remove all restrictions preventing lawyers fromtalking to the media, consistent with China's constitutional freeexpression guarantee, with only narrowly tailored exceptions necessary toprotect the integrity of judicial processes.

·Ensure that arbitrary restrictions are notplaced on the press in the coverage of cases, including restrictions stemmingfrom political considerations or aimed at preventing official embarrassment.

d. Revise key laws and regulations

Annual renewal of registration of professionallicenses

·Revise the Ministry of Justice's "Methods for theManagement 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 otherarbitrary factors. No lawyer should be denied renewal of registration on thebasis of the cases he has represented or is representing. If registration isdenied, the grounds on which the decision was made should be communicated inwriting, and the decision subject to appeal to an independent appellate body.

Restrictions on collective cases

·Repeal the "Guiding Opinions on Lawyers HandlingMass 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 torepresent the interests of their clients in collective cases. There should beno limitation on the type and nature of cases lawyers are entitled to represent,nor on the number of plaintiffs involved. Lawyers who accept collective casesshould not be forced to seek instructions or permission from the Ministry ofJustice.

Revisions to the Criminal Procedure Law

·Repeal article 306 of the Criminal Procedure Lawthat allows for the prosecution of lawyers who counsel clients to retractinaccurate depositions or forced confessions.

·To improve lawyers' access to criminal suspectsin custody, bring article 96 of the Criminal Procedure Law into agreement withprovisions of the revisedLaw onLawyers before the latter goes intoeffect on June 1, 2008. In particular, repeal the provisions stating that ameeting request can be denied for "cases involving state secrets" and that"personnel from the investigating organ… [may] be present" during the meetingbetween a lawyer and his client.

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

Tian Wenchang, Chen Ruihua, eds.,Draft Recommendations and Considerations bythe 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 CriminalJustice Reform - Taking for Reference the Norms of the United Nation onCriminal Justice (Bejing: Chinese People's Public Security UniversityPress, 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 Lawto ensure that lawyers get access to all evidence as soon as it is sent tocourt, and that they are given adequate time to examine, investigate, andprepare evidence and witnesses before court proceedings commence.

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

e. Ensure effective protection of lawyers

·Ensure the effective protection of lawyerscarrying out their functions, in part by reiterating China'scommitment to the Basic Principles on the Role of Lawyers, to which China is asignatory, particularly:

Principle 16

Governments shall ensure that lawyers (a) are able toperform all of their professional functions without intimidation, hindrance,harassment or improper interference; (b) are able to travel and to consult withtheir clients freely both within their own country and abroad; and (c) shallnot suffer, or be threatened with, prosecution or administrative, economic orother sanctions for any action taken in accordance with recognized professionalduties, standards and ethics.

Principle 23

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

Lawyers shall be entitled to form and join self-governingprofessional associations to represent their interests, promote theircontinuing education and training and protect their professional integrity. Theexecutive body of the professional associations shall be elected by its membersand shall exercise its functions without external interference.

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

·Issue an unconditional invitation to the UnitedNations special rapporteur on the independence of lawyers and judges to visitChina, and allow the rapporteur full access in compliance with the terms ofreference for United Nations rapporteurs.

To members of the international law community

Including governments and internationalorganizations funding legal aid programs, law schools running legal cooperationinitiatives and international law firms with a presence in China

Human Rights Watch believes that international legalexchange and support programs that focus on legal practitioners are making apositive contribution to legal reform in China. Such programs should bestrengthened and greater resources should focus on protection for the legalprofession and access to justice.

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

a. Ensure effective protection of its local partners

·Privately and publicly express concern when theChinese partners with whom they work face abuse or interference.

·Press central government authorities to ensurethat national laws protecting the practice of law, including lawyers' vigorousdefense of controversial clients and causes, are applied locally.

·Regularly convey concerns shared by Chineselegal aid institutions to the Chinese authorities, in particular when legalactivists are at risk. 

b. Focus on practices rather than exclusively on norms

·Identify modest adjustments to existing routinesand institutions that can substantially improve the ability of lawyers toexercise their rights and lower human rights abuses.

·Encourage and finance empirical studies on obstaclesfaced by legal practitioners.

·Support programs that empirically measure keyvariables and basic operations of criminal defense lawyers.

c. Promote judicial independence as the cornerstone of legal reform

·Emphasize to Chinese officials the importance ofan independent legal sector in resolving public disputes and mediating socialunrest.

·Promote the independence of judges, lawyers, andlegal professionals.

·Offer assistance on how to structure anindependent lawyers association and provide comparative expertise on how othercountries manage relationships between judicial branches and lawyers.  

d. Promote public interest law

·Promote the development of pro bonolaw practice.

·Support legal aid to underrepresented groups inthe legal process.

·Open grant-making programs to the public so asto generate a more diversified pool of domestic partners across thecountry. 

·Ensure a balance between academic, official, andnon-governmental partners in legal aid programs.

e. Ensure greater coordination in legal assistance to China

·Ensure greater coordination between legal aidprograms.

·Ensure a balance between academic, official, andnon-governmental partners in legal aid programs.

f. Provide balanced assessments of the performance of China's legal system based on internationalstandards

·Include in periodic activity reports from legalaid programs comprehensive updates on the performance of China's legalsystem, including the extent to which it is making progress in meetinginternational standards for the administration of justice.

To foreign governments and the United Nations

·Press the Chinese government to invite the UN specialrapporteur on the independence of lawyers and judges to visit.

·Press the Chinese government to report on theimplementation of the recommendations made by the special rapporteur on tortureafter his visit to China.

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

XI.Acknowledgments

Thisreport was edited by Sophie Richardson,advocacy director for the Asia Division; Brad Adams,executive director for the Asia Division of HumanRights Watch; and Joseph Saunders,deputy director of the Program department. Dinah PoKempner, general counsel for Human Rights Watch, providedlegal review.

AndreaCottom, associate for the Asia Division, provided administrative and

technicalassistance. Production assistance was provided by Grace Choi and FitzroyHepkins.

Human Rights Watch is especially grateful to ProfessorFu Hualing and Jeffrey Prescott for reviewing an earlier version of thisreport, as well as to the many Chinese legal professionals who volunteeredtheir comments but preferred to remain anonymous.

HumanRights Watch wishes to thank several donors for their support including DavidA. Jones, Jr., Mary and Michael E. Gellert, as well as a very generousanonymous donor.

Appendix I:Glossary ofChinese Terms

Appendix II: Indexof Chinese Names

Appendix III: Selected Bibliography

Publications

All-China Lawyers Association, ed.Harmonious Society and Lawyers' Mission(Beijing: PekingUniversityPress, 2007). [中华全国律师协会(编),和谐社会与律师使命(北京:北京大学出版社,2007).]

Bian Jianlin, ed.The Quest for China's Criminal Justice Reform - Taking forReference the Norms of the United Nation on Criminal Justice (Bejing:Chinese People's PublicSecurityUniversityPress, 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).]

Beijing Lawyers Association, ed.Beijing Lawyers Forum(Beijing:ChinaLaw Press, 2005). [北京市律师协会编:律师执业讲坛,(北京:法律出版社,2005).]

Cabestan, Jean-Pierre. "The Political and PracticalObstacles to the Reform of the Judiciary and the Establishment of a Rule of Lawin China,"Journal of Chinese Political Science,vol. 10, no. 1, April 2005.

Cheng Tao.Research onProcedural Rights of Defence Attorneys(Beijing:Chinese People's PublicSecurityUniversityPress, 2006). [程滔(著),辩护律师的诉讼权利研究,北京:中国人民公安大学出版社,2006.]

China Society for Human Rights Studies, "Reform of China'sJudicial System Promotes Protection of Human Rights: An interview with WangShengjun, secretary-general of the Politico-Legal Committee of the CPC CentralCommittee,"Human Rights, vol. 4 no.2(March 2005), http://211.167.236.236/zt/magazine/200402006727100558.htm(accessed November 2, 2007).

Cohen, Jerome A. "China's Legal Reform at theCrossroad,"Far Eastern Economic Review,March 2006.

---. "A Slow March to Legal Reform," Far Eastern Economic Review, October 2007.

Constitutional and Human Rights Committee of the All-ChinaLawyers Association, Tsinghua University Constitutional and Civil RightsCentre,China's Impact Litigation,Study Material (non-published mimeograph) (Bejing, January-June 2006, Beijing),94p. [中华全国律师协会宪法与人权专业委员会,清华大学宪法于公民权利中心,中国影响性诉讼,学习资料内部交流,(第一辑 2006年1-6月).] On file with Human Rights Watch.

Chen Guangcheng, "Violence in Enforcing Family Planning in aChinese Region,"The Network of ChineseHuman Rights Defenders (CRD) on June 11, 2005, http://crd-net.org/Article/Class9/Class11/200506/20050611195219_427.html(accessed June 15, 2005).

Cheng Hai, and Gao Fengquan, Zhang Lihui, Ou-Yang Zhigang,Li Heping, Li Qingsong, Meng Xianming, et al. "Strongly Requesting theProtection of the Security of the Legal Profession According to Law, and theAmelioration of the Working Conditions of the Legal Profession," Letter to thecentral government, dated December 29, 2006 ["强烈要求依法保护律师执业安全,改善律师执业环境," 2006-12-29], http://crd-net.org/Article/ShowArticle.asp?ArticleID=3017(accessed May 15, 2007).

Fang Baoguo, "Present Situations and Outlets of a Lawyer'sMeeting-Difficulty [Translated title as published],"Lawyer Digest, Issue 4, 2007, pp. 52-69. [房保国, "律师会见难的现状与出路,"律师文摘,2007, 4辑,52-69页.]

Halliday, Terence C. and Sida Liu. "Birth of a LiberalMoment? Looking Through a One-Way Mirror at Lawyers' Defense of CriminalDefendants in China,"in Terrence. C. Halliday, L. Karpik, and M. M. Feeley (eds.).Fighting forPolitical Freedom: Comparative Studies of the Legal Complex and PoliticalLiberalism (Oxford:Hart Publishing, 2007).

Hand, Keith J. "UsingLaw for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms ofCitizen Action in the People's Republic of China,"Columbia Journal of Transnational Law, vol. 45, issue 1 (2006).

Henderson, Keith. "The rule of law and judicial corruptionin China:half-way over the Great Wall,"inTransparency International, Global Corruption Report 2007: Corruption andJudicial Systems (Cambridge University Press, April 2007), pp. 151-159.

Fu Hualing. "When Lawyers are Prosecuted: The Struggle of aProfession in Transition,"Social ScienceResearch Network (http://www.ssrn.com/),May 2007,

Fu Hualing, and Richard Cullen. "Weiquan (Rights Protection) Lawyering in an AuthoritarianState,"unpublished manuscript, 2007.

Huang, Lirong. "Legal Theory Considerations on the Standardsof Case Filing in Civil Litigation," Case-filing Office of the Supreme People'sCourt, ed.,Guide on Case-Filing, Beijing: People's CourtPublishing House, November 2004 (China Trial Guide series), pp. 89-91. [黄立嵘, "关于民事立案标准的法理思考"载最高人民法院立案厅编,立案工作指导,北京:人民法院出版社,2004-11 (中国审判指导丛书).]

Huang Jiayou. "Considerations on some issues related to theeducation in socialist rule of law viewpoints," China Laws (http://www.lawbase.com.cn), June 13, 2006. [黄家由, "社会主义法治理念教育若干问题思考,"国法律资源网,2006-6-13],

Human Rights Watch."AGreat Danger for Lawyers": New Regulatory Curbs on Lawyers RepresentingProtesters, vol. 18, no. 15(C), December 2006.

"Interview with Wang Shengjun, Secretary of the CentralCommittee Political and Legal Committee,"www.chinapeace.org,November 24, 2006 ["访中央政法委秘书长王胜俊",中国平安王,2006-11-24.]

Law Yearbook of China2006 (Beijing: Press of Law Yearbook of China,2006). [中国法律年鉴2006,(北京:法律年鉴出版社, 2007).]

Li Jianqiang, "Reviewof the situation of freedom of religion and freedom of expression in Chinain 2006," internet publication, dated November 11, 2006 (revised December8, 2006) [李建强,"2006年中国信仰自由和言论自由状况回顾作者",2006年1月20日(12月8日修定)].

Li, Yuwen. "Court Reforms in China: Problems, Progress andProspects," in Jianfu Chen, Yuwen Li, Jan Michiel Otto, eds.,Implementation of Law in the People'sRepublic of China (The Hague:Kluwer Law International, 2002).

Liebman, Benjamin L. "Lawyers, Legal Aid, and Legitimacy in China,"in William P. Alford, ed.,Raising the Bar : The Emerging LegalProfession in East Asia, HarvardUniversity Press (2007), pp. 311-356.

---. "Watchdog or Demagogue? The Media in the Chinese LegalSystem," Columbia Law Review, vol. 105, Issue 1 (January 2005), pp. 1- 157.

Long, Zongzhi.Studyof the criminal trial system, (Beijing:Politics and Law University Press, 2001), p. 151. [龙宗智,形事庭审制度研究,(北京:中国政法大学出版,2001),第151页.]

Looking at the difficulties in building a harmonious societyfrom the perspective of the Letters and Visit work, CentralPartySchool, March 29, 2007 ["从信访工作中的问题看和谐社会建设难点重点,"中央党校进修一班第40期A班社会发展方向第三课题组, 2007-03-29].

Michelson, Ethan. "Lawyers, Political Embeddedness, andInstitutional Continuity in China'sTransition from Socialism,"American Journal of Sociology, vol. 113, Issue 2 (2007).

---. "The Practice ofLaw as an Obstacle to Justice: Chinese Lawyers at Work," Law & Society Review,vol. 40 Issue 1 (2006).

PRC Ministry of Public Security Press Communique, "Ministry of Public Security Report on theTrend and Situation of Social Order for the first half of 2007," August 14,2007 ["公安部举行新闻发布会通报2007年上半年社会治安形势有关情况," 2007-08-14].

PRC Ministry of Public Security Press Conference, "PressRelease: Ministry of Public Security Report on the Trend of Social Order andDisaster in 2005," January 20, 2006 ["公安部召开新闻发布会通报2005年全国社会治安形势暨火灾形势,"2006-01-20].

Sapio, Flora. "Shuanggui andExtralegal Detention in China,"China Information, No. 22 (Forthcoming in March 2008).

Selection of Cases ofDefense of Lawyers' Rights, (Changchun:Jilin People's Press, 2003) [律师维权案例选,(长春:吉林人民出版社,2003).]

 "Statistical Surveyof Legal Aid," China Legal Aid Network (la.pfw.cn), May 14, 2007 [法律援助统计情况,中国法律援助网,2007-5-14].

"The Status of Lawyers and the Revision of the Law onLawyers,"Lawyer Digest, Issue 4,2007, pp. 13-19. ["律师地位与律师法修改,"律师文摘,2007,第4辑,13-19页].

The Third Dongfang Forum on Public Interest Litigation, Localization of Public interest Litigationin China, vol. II 130, Institute of Law, Chinese Academy of SocialSciences, August 25, 2006. [中国社会科学法院学研究所,第三届东方公益诉讼论坛,公益诉讼的本土,2006年8月中国北京.]

Tian Wenchang, and Chen Ruihua, eds.Draft Recommendations and Considerations by the Legal Profession on theRevisions 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).]

Wang Canfa. "Chinese EnvironmentalLaw Enforcement: Current Deficiencies and Suggested Reforms," Vermont Journal of Environmental Law, vol. 8(2006-2007).

"When is lawyer's help most needed? Survey of 200 detaineesin Beijing,"China Lawyers, Issue 11, 2003, p. 4. ["什么时候最需要律师帮助:对北京200名在押人员的调查",中国律师,2003年第11期，第4页.]

Work Report of theSupreme People's Court (2006), March 13, 2007. [最高人民法院工作报告，2007-3-14].　

Xin Chunying.Chinese Courts: History and Transition(Bejing: Law Press - China,2003). (Published with support from Konrad Adenauer Stiftung.)

Ye Qing and Gu Yuejin, eds.Study of the Lawyers System in China(Shanghai: ShanghaiAcademyof Social Sciences Press, 2005). [叶青,顾跃进 (主编),中国律师制度研究,(上海:上海社会科学出版社,2005).]

Yi Sheng. "A Promised Unfulfilled: The Impact of China's1996 Criminal-Procedure Reform on China'sCriminal Defense Lawyers' Role at the PretrialState"(Part 2),Perspectives, vol. 5, No. 1(March 31, 2004).

Yu Ping. "Glittery Promise vs. Dismal Reality,"Vanderbilt Journal of Transnational Law,vol. 35 (2002).

Zan Aizong, and Wang Yi, Wen Kejian, Xu Xiang, Wu Yisan,Zeng Fu, Mo Daoqian: Citizen Proposal to the National People's Congress for theInvestigation of the issue of the legality of the 'Twin Regulations' of theRuling Party, May 3, 2007. [昝爱宗、王怡、温克坚、徐祥、武宜三、曾夫、莫道前:关于要求全国人大会议对执政党"双规"合法性问题进行审查的公民建议信, 2007-03-05.]

Zhao Guoqun, ed.OnJustice: Chinese Lawyers Debate (Guangzhou:Huacheng Press, 2005). [赵国群(著),与正义有关:中国律师纵横谈,(广州:花城出版社,2005).]

Zhu Jingwen.Report onChina Law Development:Database and Indicators (Beijing:People's University Press, 2007). [朱景文(主编),中国法律发展报告:数据库和指标体系(北京；中国人民大学出版社,2007).]

Laws and regulations

Charter of the All-China Lawyer Association, April 4, 1999, [中华全国律师协会章程,1999-4-28].

Constitution of the People's Republic of China,December 4, 1982 (last revised March 2004).

Criminal law of the People's Republic of China, March 1997 (last revisedJune 26, 2006).

Criminal procedure law of the People's Republic of China,March 1996.

Law on lawyers of the People's Republic of China, StandingCommittee of the National People's Congress, adopted May 15, 1996 (last revised October 28, 2007, effectiveJune 1st, 2008) [全国人民代表大会常务委员会:中华人民共和国律师法,(2007年10月28修订后)2008年6月1日起施行].

"Notice on Earnestly Implementing the Law on Lawyers,Supreme People's Court of the People's Republic of China," March 13, 2006 [中华人民共和国最高人民法院:关于认真贯彻律师法依法保障律师在诉讼中执业权利的通知,2006-9-27 ].    

"Decision of the Central Party Authorities Regarding theStrengthening of the Work of the Courts and Procuratorates,"www.chinacourt.org, ["中共中央关于进一步加强人民法院、人民检察院工作的决定",人民法院报,2006-6-30].

"Regulations on a number of issues concerning theimplementation of the criminal procedure law, Jointly issued by the SupremePeople's Court, Public Security Ministry, State Security Ministry, JusticeMinistry, National People's Congress Standing Legal Work Committee," January19, 1998. [最高人民法院最高人民检察院,公安部,国家安全部,司法部,全国人大常委会法制工作委员会:关于刑事诉讼法实施中若干问题的规定,1998-01-09].

"Methods for the management of lawyer's professionallicenses," Ministry of Justice, Order No 46, November 25, 1996. [律师执业证管理办法,1996-11-25,司法部令第46号发布.]

Speeches

Hu Jintao. "Hold High the Great Banner of Socialism WithChinese Characteristics and Strive for New Victories in Building a ModeratelyProsperous Society in All Respects: Report to the Seventeenth National Congressof the Communist Party of China," October 15, 2007 ["高举中国特色社会主义伟大旗帜　为夺取全面建设小康社会新胜利而奋斗━在中国共产党第十七次全国代表大会上的报告胡锦涛在中国共产党第十七次全国代表大会上的报告," 2007-10-15.]

Luo Gan. "Bolstering the Teaching of the Concept ofSocialist Rule of Law: Conscientiously Strengthening the Political Thinking ofthe Political and Legal Ranks,"SeekingTruth, 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, 2006-06-16 (总433期)].

---. "The Political and Legal Organs Shoulder an ImportantHistorical Mission and a Political Duty during the Construction of a HarmoniousSociety,"Seeking Truth, Issue 448,February 1, 2007 [罗干,"政法机关在构建和谐社会中担负重大历史使命和政治责任,"求是,2007-02-01 (总448期)].

Wen Jiabao. Report on the Work of theGovernment delivered by Premier Wen Jiabao at the Fifth Session of the TenthNational People's Congress on March 5, 2007.

---. "Text of Chinese premier's government work report atNPC session,"BBC Monitoring Asia Pacific,March 5, 2006.

Wu Guanzheng. "Expand the Field of Preventing and TacklingCorruption at Its Source and Thoroughly Push Forward the Improvement of theParty's Work Style, the Building of a Clean Government, and the StruggleAgainst Corruption - Work Report by Comrade Wu Guanzheng at the Seventh plenarysession of the CCP Central Commission for Discipline Inspection,"Xinhua News Agency, February 14, 2007.

Xiao Yang. "China'sTop Judge Says Crackdown on Crimes Promotes Social Stability, Human RightsProtection,"People's Daily Online(English version), March 13, 2007.

Zhao Dacheng. "Closure speech by vice-Minister Zhao Dachengat the All-China National Lawyers Association training in socialist rule of lawvalues," website of the All-China Lawyers Association (www.acla.org.cn),October 30, 2007 ["赵大程副部长在全国律师社会主义法治理念培训班结束时的讲话,"中国律师网, 2007-10-30.]

---."Speech byvice-Minister Zhao Dacheng at the Opening Training Session for Heads of LawFirms of the All-China Lawyers Association," December 13, 2007 [赵大程副部长在"首届全国律师事务所主任培训班"上的讲话,"2007-12-13.]

---. "Several Issues relating to the Administration ofLawyers,"Justice of China, November2006, [赵大程, "关于律师工作的若干问题",中国司法,2006-11], pp. 9-14.

Appendix IV:Lawon Lawyers of the People's Republic ofChina

(Adopted at the 19th Session of the Standing Committee ofthe Eighth National People's Congress on May 15, 1996; last revised at the 30thSession of the Tenth National People's Congress on October 28, 2007; effectiveas of June 1, 2008.)

Table of Contents

Chapter I       GeneralProvisions

Chapter II      LawyerPractice Licensing

Chapter III     LawFirms

Chapter IV     Practices,Rights and Obligations of Lawyers

Chapter V      LawyersAssociation

Chapter VI     LegalLiability

Chapter VII    SupplementaryProvisions

Chapter I: General Provisions

Article 1

This Law has been made to improve the lawyer system,standardize the practicing conduct of lawyers, safeguard the legal practice oflaw by lawyers, and discharge the functions of lawyers in the building of asocialist legal system.

Article 2

A lawyer as mentioned in this Law shall refer to apractitioner who has acquired a lawyer's practicing certificate according tolaw and accepts authorization or appointment to provide legal services for aclient.

A lawyer shall maintain the legal rights and interests of aclient, maintain the correct enforcement of law, and maintain the socialfairness and justice.

Article 3

In practicing law, a lawyer must observe the Constitutionand laws and adhere to the professional ethics and practicing disciplines oflawyers.

In practicing law, a lawyer must take fact as the basis andtake law as the yardstick.

In practicing law, a lawyer must accept the supervision ofthe state, public and client.

The legal practice of a lawyer shall be protected by law,and no organization or individual shall infringe upon the legal rights andinterests of a lawyer.

Article 4

The justice administrative authorities shall supervise andprovide guidance for lawyers, law firms and lawyers' associations in accordancewith this Law.

Chapter II Lawyer Practice Licensing

Article 5

To apply for practicing law, a person shall satisfy thefollowing conditions:

1. Upholding the Constitution of the People's Republic of China;
2. Passing the uniform national judicial examination;
3. Completing one-year internship at a law firm; and
4. Having good character and conduct.

In the application for practice of law, a certificate oflawyer qualification acquired before the adoption of the uniform nationaljudicial examination shall be equally authentic with a certificate of passingthe uniform national judicial examination.

Article 6

To apply for practicing law, a person shall lodge anapplication with the justice administrative authority of the people'sgovernment of a city with districts or the people's government of a district ofa municipality directly under the Central Government, and submit the followingmaterials:

1. Certificate of passing the uniform national judicial examination;
2. Document issued by a lawyers' association on the applicant's passing the internship assessment;
3. Identity certificate of the applicant; and
4. Certificate issued by a law firm on agreeing to accept the applicant.

To apply for practicing law on a part-time basis, a personshall also submit a certificate that the work unit of the applicant allows theapplicant to practice law on a part-time basis.

The authority accepting the application shall examine theapplication and submit its examination opinions and all application materialsto the justice administrative authority of a province, autonomous region ormunicipality directly under the Central Government within 20 days as of thedate of acceptance. The justice administrative authority of a province,autonomous region or municipality directly under the Central Government shallreview the submissions and make a decision on approving or disapproving thepractice of law within ten days as of receiving the submissions. If thepractice of law is approved, a lawyer's practicing certificate shall be issuedto the applicant; if the practice of law is disapproved, the reasons shall beexplained in writing to the applicant.

Article 7

A lawyer's practicing certificate shall not be issued to anapplicant who is under any of the following circumstances:

1. Having no capacity or limited capacity in civil conduct;
2. Having a record of criminal punishment, except for a crime of negligence; or
3. Having been expelled from a public office or having his lawyer's practicing certificate revoked.

Article 8

Where a person, who has received regular course education orabove in an institution of higher learning, has been engaged in theprofessional work for at least 15 years in a field short of legal service staffand has a senior professional title or an equivalent professional title,applies for practicing law on a full-time basis, an approval of practice of lawmay be granted if he passes the assessment of the justice administrativeauthority under the State Council. The specific rules shall be made by theState Council.

Article 9

Under either of the following circumstances, the justice administrativeauthority of a province, autonomous region or municipality directly under theCentral Government shall revoke a decision on approving the practice of law,and cancel the lawyer's practicing certificate of the person whose practice oflaw is approved:

1. An applicant has acquired a lawyer's practicing certificate by fraud, bribery or any other illicit means; or
2. The practice of law by an applicant who does not satisfy the conditions set forth in this Law has been approved.

Article 10

A lawyer may only practice law in one law firm. Where alawyer changes his firm of practice, he shall apply for replacement of thelawyer's practicing certificate.

The practice of law by a lawyer shall be free of territorialrestrictions.

Article 11

A civil servant shall not concurrently serve as a practicinglawyer.

A lawyer, who serves as a member of a standing committee ofa people's congress at any level, shall not be engaged in a practice ofrepresentation or defense in litigation during his term of membership.

Article 12

A person who is engaged in the legal education or researchwork in an institution of higher learning or research institute may apply forpracticing law as a part-time lawyer, according to the procedures set forth inArticle 6 of this Law, with the consent of the work unit of the person, if theconditions set forth in Article 5 of this Law are satisfied.

Article 13

A person who has not acquired a lawyer's practicingcertificate shall not be engaged in legal service practices in the name of lawyer;and, except as otherwise provided for by law, shall not be engaged in apractice of representation or defense in litigation.

Chapter III Law Firms

Article 14

A law firm is a firm where a lawyer practices law. To form alaw firm, the following conditions shall be satisfied:

1. It shall have its own name, residence and articles of association;
2. It shall have lawyers consistent with the provisions of this Law;
3. The promoter shall be a lawyer with certain practicing experience and without suffering a penalty of cessation of practicing within three years; and
4. It shall have assets in the amount as provided for by the justice administrative authority of the State Council.

Article 15

To form a partnership law firm, in addition to satisfyingthe conditions set forth in Article 14 of this Law, there shall be three ormore partners, and a promoter shall be a lawyer with practicing experience forthree or more years.

A partnership law firm may be formed as a generalpartnership or a limited liability partnership. The partners of a partnershiplaw firm shall be liable for the debts of the law firm in terms of the form ofpartnership.

Article 16

To form a sole proprietorship law firm, in addition tosatisfying the conditions set forth in Article 14 of this Law, the promotershall be a lawyer with practicing experience for five or more years. Thepromoter shall be unlimitedly liable for the debts of the law firm.

Article 17

To apply for forming a law firm, the following materialsshall be submitted:

1. The written application;
2. The name and articles of association of the law firm to be formed;
3. The list and resumes, identity certificates and lawyer's practicing certificates of lawyers;
4. Certificate of residence; and
5. Certificate of assets.

To form a partnership law firm, a partnership agreementshall also be submitted.

Article 18

To form a law firm, an application shall be lodged with thejustice administrative authority of the people's government of a city withdistricts or the people's government of a district of a municipality directlyunder the Central Government, and the authority accepting the application shallexamine the application and submit its examination opinions and all applicationmaterials to the justice administrative authority of a province, autonomous regionor municipality directly under the Central Government within 20 days as of thedate of acceptance. The justice administrative authority of a province,autonomous region or municipality directly under the Central Government shallreview the submissions and make a decision on approving or disapproving theformation of the law firm within ten days as of receiving the submissions. Ifthe formation of the law firm is approved, a law firm's practicing certificateshall be issued to the applicant; if the formation of the law firm isdisapproved, the reasons shall be explained in writing to the applicant.

Article 19

A partnership law firm that has been formed for three yearsand has 20 or more practicing lawyers may form a branch. The formation of abranch shall be examined by the justice administrative authority of thepeople's government of a province, autonomous region or municipality directlyunder the Central Government of the location of the branch to be formed. Theprocedures as provided for in Article 18 of this Law shall apply to anapplication for the formation of a branch.

A partnership law firm shall be liable for the debts of itsbranch.

Article 20

A law firm funded and formed by the state shall legally andindependently develop lawyer practices, and be liable for its debts with allassets of the law firm.

Article 21

Any modification of the name, person in charge, articles ofassociation or partnership agreement of a law firm shall be reported to theoriginal examination and approval authority for approval.

Any modification of the residence or partners of a law firmshall be reported to the original examination and approval authority forarchival purposes within 15 days as of the date of modification.

Article 22

A law firm under any of the following circumstances shall beterminated:

1. The statutory formation conditions cannot be maintained, and the law firm remains to be unable to satisfy the conditions after making rectification before a prescribed time limit;
2. The law firm's practicing certificate has been revoked according to law;
3. The law firm decides to wind up on its own; or
4. Any other circumstance under which a law firm is to be terminated as provided for by a law or administrative regulation.

Where a law firm is terminated, the authority issuing thepracticing certificate shall cancel the practicing certificate of the law firm.

Article 23

A law firm shall establish and enhance the practicingmanagement, examination on conflicts of interest, fee charge and financialmanagement, complaint investigation, annual assessment, archival management andother systems, and supervise its lawyers' compliance with the professionalethics and practicing disciplines in their practicing activities.

Article 24

A law firm shall submit its annual practicing informationreport and lawyer practicing assessment results to the justice administrativeauthority of the people's government of a city with districts or the people'sgovernment of a district of a municipality directly under the CentralGovernment after the annual assessment each year.

Article 25

For a lawyer to undertake a practice, the law firm shalluniformly accept a client's authorization and enter into a writtenauthorization agreement with a client, and uniformly charge fees and enter theminto accounts according to the provisions of the state.

A law firm and its lawyers shall pay taxes according to law.

Article 26

A law firm and its lawyers shall not develop practices bydefaming other law firms and lawyers, paying middleman fees and other illicitmeans.

Article 27

 A law firm shall notbe engaged in business operations other than legal services.

Chapter IV Practices, Rights and Obligations of Lawyers

Article 28

A lawyer may be engaged in the following practices:

1. Accepting authorization by a citizen, legal person or any other organization to serve as a legal consultant;
2. Accepting authorization by a client in a civil or administrative case to serve as an agent ad litem and participate in legal proceedings;
3. Accepting authorization by a criminal suspect in a criminal case to provide him with legal advice, represent him in filing a petition or charge, or apply for a bail for awaiting trial for an arrested criminal suspect; accepting authorization by a criminal suspect or defendant or accepting appointment by a people's court to serve as a defender; and accepting authorization by a private prosecutor in a case of private prosecution or by the victim or his close relative in a case of public prosecution to serve as an agent ad litem and participate in legal proceedings;
4. Accepting authorization to represent a client in filing a petition in any litigation;
5. Accepting authorization to participate in mediation and arbitration activities;
6. Accepting authorization to provide non-contentious legal services; and
7. Answering questions on law and representing a client in writing litigation documents and other documents on the relevant legal affairs.

Article 29

A lawyer serving as a legal consultant shall provideopinions on relevant legal issues for a client as agreed upon, draft andexamine legal documents, represent a client in legal proceedings, mediation orarbitration, handle other legal affairs as authorized, and protect the legalrights and interests of the client.

Article 30

A lawyer serving as an agent in contentious andnon-contentious legal affairs shall protect the legal rights and interests of aclient within the extent of authorization.

Article 31

A lawyer serving as a defender shall present materials andarguments proving that a criminal suspect is innocent or is less guilty thancharged or his criminal liability should be mitigated or relieved, on the basisof fact and law, so as to protect the legal rights and interests of thecriminal suspect or defendant.

Article 32

A client may refuse to be further defended or represented byan authorized lawyer, and may authorize another lawyer to defend or representhim.

After accepting authorization, a lawyer shall not refuse todefend or represent a client without good reasons. However, if the authorizedmatter violates the law, the client makes use of the services provided by thelawyer to engage in illegal activities or deliberately conceals a material factrelated to the case, the lawyer shall have right to refuse to defend orrepresent the client.

Article 33

As of the date of first interrogation of or adoption of acompulsory measure on a criminal suspect by the criminal investigative organ,an authorized lawyer shall have right to meet the criminal suspect or defendantand learn information related to the case, by presenting his lawyer'spracticing certificate, certificate of his law firm and power of attorney orofficial legal aid papers. A lawyer who meets a criminal suspect or defendantshall not be under surveillance.

Article 34

As of the date of prosecution examination of a case, anauthorized lawyer shall have the right to consult, extract and duplicatelitigation documents and case materials. As of the date of acceptance of a caseby the people's court, an authorized lawyer shall have the right to consult,extract and duplicate all materials related to the case.

Article 35

As needed by a case, an authorized lawyer may apply to thepeople's procuratorate or the people's court to gather, investigate and takeevidence or apply to the people's court for notifying a witness to testify incourt.

Where a lawyer investigates and takes evidence on his own,he may investigate information related to the legal affairs handled from therelevant entity or individual, by presenting his lawyer's practicingcertificate and certificate of his law firm.

Article 36

Where a lawyer serves as an agent ad litem or defender, hisright of debate or defense shall be protected by law.

Article 37

The personal rights of a lawyer in practicing law shall notbe infringed upon.

The representation or defense opinions presented in court bya lawyer shall not be subject to legal prosecution, however, except speechescompromising the national security, maliciously defaming others or seriouslydisrupting the court order.

Where a lawyer is legally detained or arrested for anysuspected criminal involvement during participation in a legal proceeding, thedetention or arrest organ shall notify the relative, the law firm and thelawyers' association of the lawyer within 24 hours after the adoption ofdetention or arrest.

Article 38

A lawyer shall keep the national secrets and trade secretsknown in practicing law, and shall not divulge any privacy of a client.

A lawyer shall keep confidential the condition andinformation that is known by the lawyer in practicing law and the client andother persons are reluctant to disclose, however, except facts and informationon a crime compromising the national security or public security or seriouslyendangering the safety of the body or property of a person, which a client orother person prepares to commit or is committing.

Article 39

A lawyer shall not represent both parties in a same case,and shall not represent a client in a legal affair that has any conflict ofinterest with himself or his close relative.

Article 40

A lawyer shall not have any of the following conduct inpracticing law:

1. Accepting authorization or charging fees privately, or accepting property or any other benefit from a client;
2. Seeking the disputed rights and interests of a party by taking advantage of the provision of legal services;
3. Accepting property or any other benefit from the opposite party, maliciously colluding with the opposite party or a third party to damage the rights and interests of his client;
4. Meeting a judge, prosecutor, arbitrator or any other relevant staffer in violation of provisions;
5. Bribing or bribing as an intermediary a judge, prosecutor, arbitrator or any other relevant staffer, instructing or inducing a party to bribe the same, or affecting the handling of a case according to law by a judge, prosecutor, arbitrator or any other relevant staffer by any other illicit means;
6. Deliberately providing false evidence or threatening or inducing others to provide false evidence, or obstructing the opposite party's legal obtaining of evidence;
7. Instigating or abetting a party to settle disputes by such illegal means as disrupting the public order or compromising the public safety; or
8. Disrupting the order of a court or arbitral tribunal, or interfering with the normal conduct of litigation or arbitration.

Article 41

A lawyer who once served as a judge or prosecutor shall notact as an agent ad litem or defender within two years after leaving his post inthe people's court or the people's procuratorate.

Article 42

Lawyers and law firms shall perform their obligations oflegal aid according to the state provisions, provide the aided persons withstandard legal services, and protect the legal rights and interests of theaided persons.

Chapter V Lawyers' Association

Article 43

A lawyers' association is a social organization as legalperson and self-disciplinary organization of lawyers.

The All-China Lawyers' Association shall be formed at thenational level, while local lawyers' associations shall be formed by provinces,autonomous regions, and municipalities directly under the Central Government.Local lawyers' associations may be formed as needed by cities with districts.

Article 44

The Articles of Association of the All-China Lawyers'Association shall be made by the National Congress of Members and submitted tothe justice administrative authority of the State Council for archivalpurposes.

The articles of association of a local lawyers' associationshall be made by the local congress of members and submitted to the same-leveljustice administrative authority for archival purposes. The articles ofassociation of a local lawyers' association shall not conflict with theArticles of Association of the All-China Lawyers' Association.

Article 45

A lawyer or law firm shall join his or its local lawyers'association. A lawyer or law firm that has joined his or its local lawyers'association shall concurrently be a member of the All-China Lawyers'Association.

The members of a lawyers' association shall enjoy the rightsas provided for by the articles of association of the lawyers' association, andperform the obligations as provided for by the articles of association of thelawyers' association.

Article 46

A lawyers' association shall perform the followingfunctions:

1. Safeguarding the practice of law by lawyers, and protecting the legal rights and interests of lawyers;
2. Summarizing and exchanging the work experience of lawyers;
3. Making a professional code and disciplinary rules;
4. Organizing the lawyer practice training and the education on professional ethics and practicing disciplines, and conducting the practicing assessment of lawyers;
5. Organizing and managing the internships of persons applying for the practice of law, and conducting the assessment of interns;
6. Rewarding or disciplining a lawyer or law firm;
7. Accepting a complaint or report on a lawyer, mediating disputes arising out of the practice of law by a lawyer, and accepting a petition by a lawyer; and
8. Other functions as provided for by laws, administrative regulations and rules and articles of association of a lawyers' association.

The professional code and disciplinary rules made by alawyers' association shall not conflict with the relevant laws andadministrative regulations and rules.

Chapter VI Legal Liability

Article 47

For any of the following conduct of a lawyer, the justiceadministrative authority of the people's government of a city with districts orthe people's government of a district of a municipality directly under theCentral Government shall give a warning and may impose a fine of not more than5,000 yuan; if there is any illegal income, shall confiscate the illegalincome; and if the circumstances are serious, shall impose a penalty ofcessation of practice for not more than three months:

1. Practicing law in two or more law firms at the same time;
2. Developing practices by illicit means;
3. Representing both parties in a same case, or representing a client in a legal affair that has any conflict of interest with himself or his close relative;
4. Serving as an agent ad litem or defender within two years after leaving his post in a people's court or the people's procuratorate; or
5. Refusing to perform his legal aid obligation.

Article 48

For any of the following conduct of a lawyer, the justiceadministrative authority of the people's government of a city with districts orthe people's government of a district of a municipality directly under theCentral Government shall give a warning and may impose a fine of not more than10,000 yuan; if there is any illegal income, shall confiscate the illegalincome; and if the circumstances are serious, shall impose a penalty ofcessation of practice for not less than three months but not more than sixmonths:

1. Accepting authorization or charging fees privately, or accepting property or any other benefit from a client;
2. Refusing to defend or represent a client, or failing to appear before court in litigation or arbitration, without good reasons, after accepting authorization;
3. Seeking the disputed rights and interests of a party by taking advantage of the provision of legal services; or
4. Divulging a trade secret or personal privacy.

Article 49

For any of the following conduct of a lawyer, the justiceadministrative authority of the people's government of a city with districts orthe people's government of a district of a municipality directly under theCentral Government shall impose a penalty of cessation of practice for not lessthan six months but not more than one year and may impose a fine of not more than50,000 yuan; and if there is any illegal income, shall confiscate the illegalincome; if the circumstances are serious, the justice administrative authorityof a province, autonomous region or municipality directly under the CentralGovernment shall revoke his lawyer's practicing certificate; and if a crime isconstituted, he shall be pursued for criminal liability:

1. Meeting a judge, prosecutor, arbitrator or any other relevant staffer in violation of provisions, or affecting the handling of a case according to law by a judge, prosecutor, arbitrator or any other relevant staffer by any other illicit means;
2. Bribing, bribing as an intermediary or instigating or inducing a party to bribe a judge, prosecutor, arbitrator or any other relevant staffer;
3. Providing the justice administrative authority with false materials or making any other falsehood;
4. Deliberately providing false evidence or threatening or inducing others to provide false evidence, or obstructing the opposite party's legal obtaining of evidence;
5. Accepting property or any other benefit from the opposite party, maliciously colluding with the opposite party or a third party to infringe upon the rights and interests of a client;
6. Disrupting the order of a court or arbitral tribunal, or interfering with the normal conduct of litigation or arbitration.
7. Instigating a party to settle disputes by such illegal means as disrupting the public order or compromising the public safety;
8. Delivering a speech that compromising the national security, maliciously defaming others or seriously disrupting the court order; or
9. Divulging a national secret.

Where a criminal penalty is imposed on a lawyer for anintentional crime, the justice administrative authority of a province,autonomous region or municipality directly under the Central Government shallrevoke his lawyer's practicing certificate.

Article 50

For any of the following conduct of a law firm, the justiceadministrative authority of the people's government of a city with districts orthe people's government of a district of a municipality directly under theCentral Government shall give a warning or impose a penalty of cessation ofpractice for correction for not less than one month but not more than sixmonths and may impose a fine of not more than 100,000 yuan according to thecircumstances; and if there is any illegal income, shall confiscate the illegalincome; and if the circumstances are especially serious, the justiceadministrative authority of a province, autonomous region or municipalitydirectly under the Central Government shall revoke the law firm's practicingcertificate:

1. Accepting authorization or charging fees in violation of provisions;
2. Handling such major matters as modification of its name, person in charge, articles of association, residence and partners in violation of statutory procedures;
3. Being engaged in business operations other than legal services;
4. Developing practices by defaming other law firms and lawyers, paying middleman fees and other illicit means;
5. Accepting cases with any conflict of interest in violation of provisions;
6. Refusing to perform its legal aid obligation;
7. Providing the justice administrative authority with false materials or making any other falsehood; or
8. Causing serous results for mismanagement of its lawyers.

Where a law firm is punished for any violation of law in thepreceding paragraph, a warning shall be given to or a fine of not more than20,000 yuan shall be imposed on the person in charge of the law firm accordingto the severity of circumstance.

Article 51

Where, for any violation of this Law, a lawyer is againsubject to a warning punishment within one year after being given a warningpunishment, the justice administrative authority of the people's government ofa city with districts or the people's government of a district of amunicipality directly under the Central Government shall impose a penalty ofcessation of practice for not less than three months but not more than oneyear; where a lawyer is again subject to a penalty of cessation of practicewithin two years after a period of penalty of cessation of practice expires,the justice administrative authority of a province, autonomous region ormunicipality directly under the Central Government shall revoke his lawyer'spracticing certificate.

Where, for any violation of this Law, a law firm is againsubject to a penalty of cessation of practice for correction within two yearsafter a period of penalty of cessation of practice for correction expires, thejustice administrative authority of a province, autonomous region ormunicipality directly under the Central Government shall revoke the law firm'spracticing certificate.

Article 52

The justice administrative authority of the people'sgovernment at the county level shall conduct the daily supervision and managementof the practice of law by lawyers and law firms, and order correction of theproblems found in the inspection; and shall timely investigate complaints bythe parties concerned. Deeming that an administrative punishment shall beimposed against any legal violation committed by a lawyer or a law firm, thejustice administrative authority at the county level shall offer punishmentsuggestions to its superior justice administrative authority.

Article 53

A lawyer on whom a penalty of cessation of practice for notless than six months has been imposed shall not serve as a partner until threeyears have passed after the period of penalty expires.

Article 54

Where a lawyer causes losses to a party for his illegalpractice of law or fault, his law firm shall assume the compensatory liability.After compensation, the law firm may demand recourse from the lawyer who actsintentionally or has gross negligence.

Article 55

Where a person without acquiring a lawyer's practicingcertificate engages in legal service practices in the name of lawyer, thejustice administrative authority of the local people's government at or abovethe county level at his locality shall order cessation of the illegal practice,confiscate illegal income, and impose a fine of not less than the amount butnot more than five times the amount of illegal income.

Article 56

Where a staffer of the justice administrative authorityabuses his powers or commits dereliction of duties in violation of this law,and constitutes a crime, he shall be pursued for criminal liability; where acrime is not constituted, a discipline shall be imposed on him according tolaw.

Chapter VII Supplementary Provisions

Article 57

In respect of military lawyers who provide legal services tothe army, this law shall apply to their acquisition of the lawyerqualification, rights and obligations and code of conduct. The specificmeasures for the administration of military lawyers shall be made by the StateCouncil and the Central Military Commission.

Article 58

The specific measures for the administration ofestablishment of offices by foreign law firms within the territory of thePeople's Republic of Chinato provide legal services shall be made by the State Council.

Article 59

The specific measures for charging lawyers' fees shall bemade by the competent price authority of the State Council in conjunction withthe justice administrative authority of the State Council.

Article 60

This Law shall be effective as of June 1, 2008.