Lawyers demand more autonomy for bar associations as country pushes for rule of law

By Huang Jingjing Source:Global Times Published: 2015-3-25 19:53:01

China's current leadership has enacted several measures to ensure lawyers' ability to effectively defend their clients. However, some local government officials still see lawyers as troublemakers that must be controlled, allegedly imposing restrictions on them by manipulating lawyers' associations. The associations have - encouraged by the central government - redoubled their efforts to protect the lawyers rights and interests. The success of judicial reform largely lies in the development of the legal profession, experts say.

A plaintiff (left) consults with his lawyer during an administrative lawsuit in a Beijing court, February 10, 2015. Photo: CFP

Despite facing the risk of their law licenses being revoked, five lawyers from Southwest China's Yunnan Province jointly released an open letter in which they publicly declared that they were quitting their local lawyers' association. In the letter they accused the lawyers' association of failing to safeguard lawyers' rights and interests and of actively obstructing them from defending their clients.

According to the law regulating the activities of lawyers in China, all lawyers and law firms must join their local lawyers' association. The law says that the associations should be self-regulatory social organizations.

But some lawyers have complained that in some places, local associations lack democratic elections and financial transparency, and even turn a blind eye when lawyers' rights are infringed.

"The major problem is that lawyers associations are still manipulated by the authorities. They are yet to be non-governmental," Wang Liqian, one of the five lawyers and the director of the Lianyu Law Firm based in Zhaotong, Yunnan Province, told the Global Times.

As these local organizations are supposed to examine and regulate lawyers and law firms, too much government interference will affect the ability of lawyers to defend their clients and may even cause miscarriages of justice, Wang said.

Lü Hongbing, who has been a vice president of the All China Lawyers Association since 2008, refuted the accusations and said that some lawyers misunderstand the government's role in managing lawyers' associations. "Just like other industrial associations, lawyers' associations also need the supervision and guidance of the government," Lü told the Global Times.

Reactions to the five lawyers' move have been mixed. "Some complaints are understandable but openly quitting is not wise. Most provincial-level associations are separated from government justice organs. They hold democratic elections and their financial auditing is made public," Xu Jian, dean of the Renmin University of China's law college, told the Global Times.

"As in other countries, it is mandatory that lawyers join such associations. If there is no organization to punish wrongdoings, the growth of the whole industry will be damaged," Lü stated.

The government has made efforts to show lawyers that it is concerned about their rights. In the work reports of Supreme People's Court (SPC) and Supreme People's Procuratorate (SPP) delivered at the recent annual two legislative sessions, chief justice Zhou Qiang and Procurator-General Cao Jianming mentioned "lawyer" a total of 25 times, many more than ever before, and pledged to protect lawyers' rights and interests and improve their occupational environment.

"Judicial irregularities like restricting lawyers' rights take place from time to time," Cao said. "Measures should be introduced to ensure the right of lawyers to practice, to speed up the building of service platforms for them, to provide them with convenience and to help them play the full role of a lawyer," Zhou said in the report.

Xu said that lawyers are a vital part of the country's political and legal systems, and the democratization of the lawyer management system will drive the rule of law.

Interfering officials 

Restrictions on the rights to investigate, collect evidence, meet with detained clients, and read case records have long been occupational barriers for lawyers in China.

In some cases, lawyers were allegedly beaten or driven out of courts during hearings. To the disappointment of lawyers, some local lawyers' associations have failed to respond to complaints about such incidents.

"Last year during litigation, I was assaulted by police officers, my cameras were destroyed and my audio recorder was seized. I reported these offenses to the district, municipal and national-level lawyers' associations, but none of them responded," said Cheng Hai, a lawyer from Beijing Wutian Law Firm, who represents administrative cases such as when individuals pursue equal access to education or seek to publicize officials' assets.

Lü said that they would try to respond to any complaint regarding the infringement of lawyers' rights. The Shanghai Lawyers Association, where he was president from 2005 to 2008, has dealt with a total of 96 complaints from lawyers in the past four years, according to Lü.

Some lawyers have complained that lawyers' associations encourage them not to take sensitive cases, as if they did they may not pass the association's annual review. This would mean that they would officially be an "unqualified" lawyer and would likely find it very difficult to attract clients.

Lin Zhong, a lawyer from Heilongjiang Province, was quoted as saying by the Southern Weekly in a November report that he received such a warning from his local association after he accepted a sensitive administrative lawsuit.

Mo Shaoping, a renowned criminal defense lawyer claimed he had a similar experience to Lin, and said establishing lawyers' associations as independent social organizations is an international practice.

"But in China, some lawyers' associations are controlled by the local justice authorities. And its director or secretary is appointed by a senior official from the justice administration," Mo told the Global Times. Thus the association becomes an accessory of local administration, which helps the government crack down on lawyers who are insubordinate, he said.

Chi Susheng, a Heilongjiang-based lawyer and former National People's Congress (NPC) deputy, agreed with Mo's sentiments.

"Sometimes, an association's secretary is appointed by the justice organs and they have the real power, instead of the association head chosen by the members," Chi told the Global Times, citing an experience she had when the Heilongjiang prevented her from attending a seminar on criminal law in Taiwan.

"I later learned that the association's head and deputy heads all agreed that I should go, but the secretary appointed by the provincial justice department didn't want me to go," she said.

Lü denied these claims, saying that all personnel appointments and other decisions are deliberated on by associations' congresses through legal procedures.

"And from my personal experience in past decade, I have never encountered any occasion in which associations have intervened in lawyers' legitimate practices," said Lü.

Wang Liqian said the Yunnan Lawyers Association approached them soon after they issued the letter on the Internet. "They just argued that the association had done nothing wrong, but they didn't ask us to withdraw the letter," he said. The Global Times requested an interview with the association's president but received no response.

"The problem has existed for many years. We raised the issue now as we see the hope from the resolution of the new leadership. And we hope our move can promote some changes," he said.

Outdated mindset

Some experts have also noticed the problems facing China's lawyers' associations.

Li Yalan, deputy head of the Heilongjiang Lawyers Association and deputy to the 12th NPC, recently proposed that a third party revise Lawyer Law that regulates lawyers and law firms to reinforce the associations' autonomy and their duty to protect lawyers' rights.

Zhou Yuntao, a researcher at the Institute for Justice and Ministration of the Ministry of Justice, said in a 2010 report that some government judicial organs haven't transformed their role from one of direct control to one of macro-management as they should have.

Xu echoed Zhou's idea, saying that in some areas, government officials still hold an outdated mindset and are not confident enough to let the associations become autonomous.

"They haven't changed their outlook and still see lawyers as 'troublemakers.' They are cautious about delegating power and control," he said.

In 1957, many lawyers were punished after being accused of "rightism" or were put into prison for "representing for guilty persons." In 1979, the legal status of lawyers was recognized and the system started to be rebuilt. But all lawyers were the on the payroll of judicial, government and justice organs until the early 1990s, when joint-stock and private law firms started to exist in China.

To enhance the self-management of the industry, the government started to transform the way it managed lawyers' associations over a decade ago. In 2002, the Ministry of Justice required all provincial-level lawyers' associations to be completely separated from government justice organs by the end of 2005.

But one or two leading posts in some associations are still occupied by officials from government justice organs. Most associations are managed in such a way that combines centralized government monitoring and self-managment.

"Such a method has its advantages. On one side, the justice departments can easily pass central policies and ideology on to the lawyers and the associations can promptly communicate lawyers' demands and difficulties to the politics and law committees," Xu said.

Some associations have become more autonomous than others.

The Shenzhen Lawyers Association has been a pioneer in this field. Since 2002, the association no longer offers officials from government departments posts in the organization. "The association is run by ourselves and the head and deputy heads are all chosen through multi-candidate elections," Gao Shu, director of the association, told the Global Times.

With more than 8,600 lawyers, the association has formed mature systems to regulate its members behavior and to maintain a proper relationship with the local justice departments, which now only exercise macro guidance and supervision.

"When informed of any violation of the rights of our lawyers, we will respond immediately, including visiting the lawyer and sending other lawyers to help with the investigation," Gao noted.

A brighter future

The Shenzhen association has become a model for other groups, said Xu Jian.

But Lü said it has yet to be copied nationwide. "Due to the backward development of lawyers' associations, some associations in central and western areas are too weak to realize complete autonomy," he said.

Justice bureaus take charge of issuing and revoking the licenses of lawyers and can help associations with administrative mediations, as well as forming policy and regulations, Lü said.

Lawyers have seen central government bodies issue several regulations that may make them feel optimistic about their future.

Since December, the SPC and SPP have issued several documents that aim to enhance lawyers' rights. The measures include allowing lawyers to visit their clients without asking for official permission and without procuratorate staff monitoring their conversations, prohibiting discriminatory security checks against lawyers, setting aside locker rooms and file reading rooms for lawyers, and accelerating the process by which judges and prosecutors are selected from a pool of lawyers.

Official figures show that China had 271,400 lawyers and 22,100 law firms by the end of 2014.

"The power of lawyers is still weak despite its rapid growth in recent years. Their political status has yet to be raised," Lü said, citing the fact that only 5,200 or 1 percent of the country's legislators and political advisors at various levels are lawyers, a proportion much smaller than many other countries.

"The industry needs the government's support to grow," he emphasized.

A man passes by the logo of All China Lawyers Association. Photo: CFP


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