Henan Justice Bureau Bans Lawyers From Using Media in Sensitive Cases

The Henan Justice Bureau has issued an opinion that bans lawyers from using the media and engaging in various other activities when handling "major, sensitive, mass" cases, according to an April 10 Henan Daily report (in Chinese, via Xinhua). The opinion states that lawyers in Henan province cannot "use the media to stir things up or create a negative impact on domestic or international public opinion." It prohibits lawyers and law firms from publishing commentary to impact the outcome of a case or the mood of the public, and warns them not to establish contact with overseas organizations or media in violation of disciplinary rules. The Henan opinion comes at a time when other institutions, including the All China Lawyers Association (ACLA), have also issued guiding opinions to restrict lawyer involvement in sensitive or mass cases.

The Henan Justice Bureau lacks the authority to prohibit lawyers from exercising their freedom of expression, which is a political right recognized under China's Constitution and national laws. Under Article 35 of the Constitution, Chinese citizens enjoy freedom of speech and of the press. The Criminal Law, which establishes a criminal punishment of "deprivation of political rights," includes in its identification of political rights "the rights of freedom of speech [and] of the press." Based on the foregoing, Chinese lawyers have a constitutionally protected right to express their legal opinions through the press, including their opinions on sensitive cases or in relation to government abuses of power. Under Article 8(v) of the Legislation Law, only the National People's Congress and its Standing Committee have the authority to enact legislation that deprives a Chinese citizen of their political rights. Government agencies such as judicial administration departments lack the authority to adopt a rule to this effect.

The Henan opinion also violates international standards, including the International Covenant on Civil and Political Rights (ICCPR). China has signed the ICCPR and has an obligation, under Article 18 of the Vienna Convention on the Law of Treaties, to refrain from acts that would defeat the purpose of a treaty while its ratification is pending. Article 19 of the ICCPR establishes that "[e]veryone shall have the right to hold opinions without interference" and that "[e]veryone shall have the right to freedom of expression; [and] this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

While the ICCPR recognizes that expression rights may be restricted "[f]or the protection of national security or of public order," the Chinese government has not demonstrated that lawyer communications with the press regarding the facts of a case have threatened, or represent a realistic threat to, national security or public order. A May 18, 2006, article in the Hong Kong newspaper Ming Pao discusses the persecution of lawyers who have engaged in criminal defense and rights defense work, and identifies Zheng Enchong, Zhu Jiuhu, Gao Zhisheng, and Guo Feixiong as four legal advocates who have been subject to government repression. Chinese authorities targeted these individuals for legal activities that were peaceful in nature and failed to credibly establish any links between their legal activities and threats to national security or public order. Nonetheless, public security officials detained Zhu Jiuhu and Guo Feixiong for several months before releasing and dropping criminal charges against them. Zheng Enchong remains in prison on a questionable charge of "illegally providing state secrets to entities outside of China." He is due for release on June 5, 2006.