China: New Rules Gag Lawyers
Human Rights Watch, 26 October 2016
Human Rights Watch — The Chinese Ministry of Justice’s revisions to two directives on law firms and lawyers will further undermine the independence of lawyers and the rule of law in China, Human Rights Watch said today. The amendments, effective November 1, 2016, are part of the government’s campaign since July 2015 to harass and jail China’s most outspoken lawyers.
“The new Justice Ministry rules basically tell human rights lawyers that their successful legal tactics are now prohibited,” said Sophie Richardson, China director at Human Rights Watch. “People’s rights can’t be robustly defended when their lawyers can’t draw attention to, or even publicly discuss, their cases.”
The new Management Methods on Law Firms (律师事务所管理办法, MoJ Directive No. 133) and Management Methods on Lawyers (律师执业管理办法, MoJ Directive No. 134) explicitly require lawyers and law firms to “support the leadership of the Chinese Communist Party,” and to establish Party branches in law firms. Lawyers are prohibited from expressing opinions that “reject the fundamental political system” of China or may “endanger national security.”
The amended directives also impose vague and overbroad restrictions on all lawyers’ right to freedom of expression. Lawyers will now be prohibited from “inciting” or “organizing” their clients and others to participate in sit-ins or demonstrations that “disturb public order” or otherwise put pressure on the authorities, even if those gatherings are peaceful. Lawyers may not make “misleading” or “malicious” comments about any cases, publish or sign joint letters, or gather “virtually” or in person to “attack or slander” the judicial system. Lawyers are barred from “gathering crowds to make a fuss,” insulting judicial officers, “denying the nature of cults when the state has already determined them as such,” or other behaviors that “disturb court order.” They also cannot use the internet and the media to “provoke discontent against the Party and the state” or “instigate” people to file lawsuits to “destabilize social stability.” Article 35 of China’s Constitution protects the right of freedom of expression.
Since the late 1970s, the number of lawyers in China has grown dramatically as the authorities rebuilt the legal system following the Cultural Revolution. The government has established hundreds of law schools to train legal professionals and promulgated new laws, such as the Lawyers Law in 2007, to facilitate the work of lawyers. But it has also increasingly treated lawyers with hostility, particularly outspoken lawyers who were known for their vigorous defense of clients whose human rights were violated.
In addition to advocating for their clients in the courtroom, where they are often forced to confront unfair trial proceedings in the deeply politicized legal system, human rights lawyers have used the media and social media to publicize their cases and criticize actions by the authorities. They have also organized or joined forces with other lawyers, victims, families, and activists in actions to champion a wide-range of issues: forced evictions, land grabs, corruption, police abuse, workers’ compensation, domestic violence, food safety, and child abuse.
The Chinese government has improperly used various tools at its disposal to punish activist lawyers, Human Rights Watch said. The Ministry of Justice and its lower-level offices issue lawyers’ licenses – particularly during China’s annual evaluation of all lawyers – they can revoke or deny them. Chinese courts can also order a maximum of 15 days of judicial detention for those who disturb court order. The police can arrest lawyers for “falsifying evidence,” a crime under article 306 of the Criminal Law, which has been brought against lawyers who encourage their clients to speak out about torture by criminal investigators. Lawyers are even at risk of being beaten, intimidated, and harassed in their work by police, court officials, and others operating at the behest of authorities. As a result, few lawyers wish to take criminal cases for fear of irking the authorities, leading to a low rate of legal representation among criminal defendants in China.
Since President Xi Jinping took office in March 2013, the environment for lawyers has become ever more treacherous, Human Rights Watch said. Prominent rights lawyers targeted by authorities since that time include:
- Xu Zhiyong, founder of the New Citizens Movement who was sentenced to four years in prison in 2014;
- Pu Zhiqiang, who was given a three-year suspended sentence for “inciting ethnic hatred” and “creating disturbances” in December 2015;
- Legal advocate Guo Feixiong, sentenced to six years in prison in November 2015; and
- Guangzhou lawyer Tang Jingling, who was given a five-year prison term in January 2016 for promoting the ideas of non-violent civil disobedience.
In July 2015, the authorities rounded up more than 300 human rights lawyers across the country, including legal assistants and activists who supported them. Most have since been released but the director of Beijing Fengrui Law Firm, Zhou Shifeng, was given a seven-year prison term in August 2016, while six lawyers – Li Heping, Xie Yanyi, Wang Quanzhang, Liu Sixin, Xie Yang, and Li Chunfu – await trial. Although Wang Yu, one of the most prominent Fengrui lawyers, was released on bail in August 2016, her whereabouts remain unknown.
The United Nations Basic Principles on the Role of Lawyers state that: “Governments shall ensure that lawyers … are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference,” and “shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
“China’s crackdown on the legal profession harms not only courageous human rights lawyers and their clients, but the rule of law for everyone,” Richardson said. “If Chinese leaders want stability, the answer is rolling back – not doubling down on – arbitrary and abusive restrictions.”