ACLA, Justice Bureau Opinions Restrict Lawyer Involvement in Sensitive, Mass Cases
The All China Lawyers Association (ACLA) has issued a guiding opinion that restricts and subjects to punishment any lawyer who gets involved in a "mass" case, according to a May 17 Xinhua article (in Chinese). The ACLA Executive Council approved the Guiding Opinion of the All China Lawyers Association Regarding Lawyers Handling Cases of a Mass Nature, which went into effect on March 20.
The All China Lawyers Association (ACLA) has issued a guiding opinion that restricts and subjects to punishment any lawyer who gets involved in a "mass" case, according to a May 17 Xinhua article (in Chinese). The ACLA Executive Council approved the Guiding Opinion of the All China Lawyers Association Regarding Lawyers Handling Cases of a Mass Nature, which went into effect on March 20. The Guiding Opinion defines "mass" cases as those that involve representative or joint litigation by 10 or more litigants, or those in which the matter is handled through a series of litigation and non-litigation efforts. It notes that mass cases "more commonly occur in the safeguarding of rights and interests related to land requisitioning and levying of taxes, building demolitions, migrant enclaves, enterprise transformation, environmental pollution, and rural laborers, among other areas." The Guiding Opinion instructs law firms to assign only "politically qualified" lawyers to conduct initial intake of these cases, and to obtain the approval of at least three partners before taking them on. Lawyers who handle mass cases must "promptly and fully communicate" this information to the local justice bureau, accept supervision and guidance by judicial administration departments, attempt to mitigate conflict, and propose mediation as the method for conflict resolution. The Guiding Opinion says that local lawyers associations may sanction any lawyer or law firm that fails to follow these guidelines and causes a "negative impact," or report them to the relevant judicial administration department for punishment.
The Guiding Opinion is one in a series of recent opinions that restrict the participation of lawyers in specific categories of rights defense work. In addition to "mass" cases, other categories that trigger restrictions include "major," "difficult," and "sensitive" cases. For example, the Henan Provincial Justice Bureau and Shenyang Municipal Justice Bureau (in Liaoning province) have each issued opinions governing the range of activities permitted in "sensitive" cases, according to an April 10 Henan Daily report (in Chinese, via Xinhua) and April 19 Legal Daily report (in Chinese). The language in these opinions echoes language in a 2004 Opinion Regarding the Further Strengthening of Guidance Over Lawyers Handling Major Cases, issued by the Nantong Municipal Justice Bureau in Jiangsu province, which defines "major" cases as:
- Cases that involve state politics or social stability.
- Cases that are sensitive or followed with interest by society.
- Cases that are relatively complex or in which the legal boundaries are unclear.
- Cases that involve litigation by a group of 10 or more.
- Cases that intend to present a defense of not guilty.
According to an April 24 Xiaoxiang Morning Post article (in Chinese, via ACLA), the focus on "sensitive" cases reflects the government's concern about disputes that are expansive and have a major impact on society, particularly those involving "the people vs. the state." Both the Henan and Shenyang opinions include barriers that go beyond the Guiding Opinion, to limit the scope of what lawyers can do when defending the rights of a client in a sensitive case. Lawyers in Shenyang are subject to oversight and must seek instruction from the Shenyang Justice Bureau before they handle any "major, difficult, and sensitive" cases, according to Legal Daily. The Henan Daily report notes that lawyers in Henan are subject to restraints on their freedom of expression and are prohibited from "using the media to stir things up or create a negative impact on domestic or international public opinion."
The ACLA and local justice bureau opinions are part of an ongoing reversal of Ministry of Justice (MOJ) statements in 2005, which emphasized reforming China's legal system to improve conditions for lawyers. In 2005, the MOJ called for revising the Lawyers Law to "further strengthen lawyers' representation and defense work in litigation matters, improve the environment and conditions for lawyers to participate in litigation, [and] prompt lawyers to take initiative when engaged in defense and representation tasks." In 2006, the MOJ's Report on the Policy for Development of China's Legal Profession did not contain any language about improving the environment for the practice of law, nor did it encourage lawyers to take any initiative in their work. Instead, it firmly established the "guiding" role of the MOJ and emphasized that lawyers must "serve economic development and [the policy of] reform and opening" and "serve the harmony and stability of society."
The Party's goal of maintaining social harmony and stability has dominated policy statements in 2006, and served as justification for the government to increase barriers to legal enforcement of citizen rights. In January 2006, the Ministry of Public Security (MPS) reported a rise in public order disturbances in 2005, reflecting a general increase in social unrest in China. MPS leaders urged the nation's public security agencies to "strike hard" against rising social unrest, and warned that China continues to face internal conflicts, high crime rates, and struggles against unnamed "enemies." In February 2006, the Guangdong Public Security Bureau circulated a report that blamed a succession of mass protests in 2005 on "disputes over so-called rights defense" and accused "hostile forces" of politicizing and inciting the masses over issues of farmer and consumer economic rights. Local justice bureaus in Henan and Shenyang, as well as in Beijing and Shanghai municipalities, have now joined public security bureaus in restricting and punishing lawyers who participate in rights defense on behalf of high-profile individuals or groups. Beijing authorities have forced lawyers such as Gao Zhisheng and Zhu Jiuhu to abandon their legal work in certain sensitive cases, including a major land dispute in which thousands of private investors sought compensation for government seizures of land. In early 2005, Shanghai authorities suspended Guo Guoting's license to practice law, and in 2003, they convicted Zheng Enchong, Guo's client and a fellow lawyer who drew government attention for advocating on behalf of evicted Shanghai residents. Prohibitions and punishments against lawyers who participate in rights defense, particularly the defense of citizen rights against government abuses, have disregarded the peaceful nature of their legal activities and made it difficult for citizens with major grievances to access legal representation.